Divorce and children: your questions answered

Stowe Family Law|December 14th 2014

Mark Christie is head of the Children’s Department here at Stowe Family Law. Here he answers some of the many questions about children that have brought visitors to the blog over the last few weeks.


My ex-husband refuses to pay child support and he lives in Italy. What can I do?

Unfortunately, as your ex-husband lives outside England and Wales and is therefore outside the jurisdiction of the Courts in this country, the CMS (Child Maintenance Service) has no jurisdiction to assess maintenance and collect it. If there is a child maintenance order in force in this country then you could seek to enforce it if there are reciprocal enforcement arrangements between the two countries, though I suspect this is not the case. If there is no order then unless the father can be persuaded to agree to pay you maintenance then you may need to consider either making an application to the Court in this country for maintenance under Schedule 1 of the Children Act 1989 or possibly making an application in the Italian Courts. In the latter case you would need to seek the advice of an Italian lawyer. In the former case if an order is made there could be problems in relation to enforcement.


What is a statement of arrangements for children form?

This is a form that used to be required to be filed at Court alongside a divorce petition, setting out certain details in relation to any children of the marriage, for example their full names, dates of birth, the arrangements in relation to schooling, any payment of maintenance, any health issues and what arrangements were in place in relation to who they were living and how they were spending time with the absent parent. However, as a result of the Children and Families Act 2014 which came into force in April this year, there is no longer a requirement to file a statement of arrangements at Court when lodging a divorce petition. Somewhat bizarrely, the acknowledgement of service form which the respondent in the divorce proceedings has to complete, sign and return to Court, erroneously continues to refer to the statement of arrangements.


Will my child maintenance stop if I cohabit or remarry?

In a word, no. Generally speaking if you are in receipt of what is known as spousal maintenance or spousal periodical payments for yourself then remarriage will usually automatically terminate the other party’s duty to make those payments to you. Cohabitation may also have a similar effect. However, maintenance actually payable for children does not automatically terminate on your remarriage or cohabitation. Neither of these dilute the payer’s legal responsibility and obligation to maintain his or her child/children.


I am scared my baby’s mother will take my children back to her country.

If you are residing in this country and are afraid that your child’s mother will remove him/her from this country to another country then there are various steps that you can take to prevent this. As a matter of self-help you can ensure that you are in possession of the child’s passport. You can also speak to the Passport Office and have a marker put on the file to ensure that you are notified if an application for a passport is made, or similarly if an application for a replacement passport is made. These practical measures can be of help. From a legal perspective, if you can satisfy the Court that there is a real risk of a child being removed from the jurisdiction of the Court, i.e. from England and Wales to another country, then you would have a right to apply to the Court for a Prohibited Steps Order under the Children Act 1989. This is an order which, if granted by the Court, prohibits a party from removing a child from the Court’s jurisdiction in England and Wales. Equally the mother may in her own right apply to the Court for a specific issue order under the Children Act, the specific issue being her desire to remove the child from the jurisdiction. In either application the Court’s decision will primarily turn on whether or not such a move would be in the child’s best interests, taking into account all the factors set out in the Welfare Checklist contained in the Children Act 1989.


Are children separated if they are adopted?

Generally speaking, the Courts are very reluctant to separate siblings from each other and will usually always try to keep siblings together if they are being placed for adoption. However in rare cases, if this is not possible, then consideration might be given to separating the siblings but it is recognised that this is not an ideal situation and should only occur in exceptional circumstances.


Can a child claim a lump sum from an absent parent?

Yes, a child’s absent parent can be ordered to pay a lump sum for the benefit of a child or indeed to transfer property for the benefit of the child during his or her minority, under Schedule 1 of the Children Act 1989. Provisions in this legislation also enable a claim for child maintenance to be made in cases where the payer is earning a significant income over and above the limits applied by the Child Maintenance Service, i.e. by way of a top up or where the CMS has no jurisdiction to deal with maintenance. The ability to obtain a lump sum in this manner is in addition to the absent parent’s legal obligation to pay child maintenance by way of weekly or monthly payments.


Can a mother with shared residence move the children away?

If you have a residence order made in this country then you can remove a child from the Court’s jurisdiction, i.e. away from England and Wales, for a period of up to one month, without requiring the permission of the other parent or the Court. However, if there is a shared residence order then the law is somewhat ambiguous as to whether or not this applies to both parents. The new child arrangements order which came into force in April 2014, and which replaces residence and contact orders, provides that any person named in the order with whom a child should live can remove a child from the jurisdiction for a period of up to one month. This can therefore include both parents. In any event, if there is a dispute about one parent’s desire to relocate with a child to another country then the parent who objects may apply to the Court for a Prohibited Steps Order under the Children Act 1989 for the issue to be determined. Equally, the parent wishing to relocate may apply for a Specific Issue Order under the Children Act 1989 for the Court’s permission to relocate. When deciding the issue the Court will be guided principally by what it believes is in the child’s best interests, taking into account the factors set out in the Welfare Checklist detailed in the Children Act 1989.


Can ex-husband make my pay via the CSA if he won’t let me see my child?

In a word, yes. The law is very clear in that there is no connection between spending time with the child and paying maintenance. The effect of this is that it is not a legally acceptable argument for a party to say “as you are not letting me have contact then I am not paying maintenance” or “I am not going to let you have contact because you are not paying me maintenance”. They are entirely separate issues though, understandably, it is very common for the two to be linked given the understandable emotions flowing from issues of this nature. The CSA (now the CMS) will not absolve you of your liability to pay maintenance simply because you are not seeing your child. If you were seeing your child then this would be a factor that would be taken into account in assessing the amount of maintenance to be paid, depending on how much time you spend with the child. You may find it helpful to visit the CMS’ website www.childmaintenanceservice.direct.gov.uk and also another website www.cmoptions.org.

Mark Christie is the head of Stowe Family Law’s dedicated Children’s Department. Mark has specialised in family law for more than 35 years and provides clients with a wealth of practical experience.

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  1. Andrew says:

    “Generally speaking if you are in receipt of what is known as spousal maintenance or spousal periodical payments for yourself then remarriage will usually automatically terminate the other party’s duty to make those payments to you. ”

    Where is “usually” coming from? The remarriage of the receiving party ends all liability except as retards arrears. No exceptions. If I am wrong please explain!

  2. Yvie says:

    Either the remarriage automatically terminates the other party’s duty to make payments or it does not. Which is it please?

  3. shahzadi says:

    can uk court make a new child maintenance order when there is already a maintenance order made by another overseas court. would the principle of res judica applies here.

    reply will be much appreciated

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