ASK A FAMILY LAWYER
In this regular column, Stowe Family Law solicitors answer readers’ questions on different legal issues. Today’s query goes to Jennifer Williamson, a senior solicitor based in our Winchester office.
“My son and daughter are both teenagers now and my son will be going off to university soon. How does that affect my child maintenance payments?”
Disagreements about maintenance for children – whether or not it should be paid at all, how much should be paid, and for how long – are, unfortunately, not unusual.
In the first instance, parents may find it helpful to refer to publicly available resources, such as government information about how child maintenance is calculated or an online child maintenance calculator. Sometimes this will be enough to iron out any difficulties. But if it is not, then Child Maintenance Options should often be the next port of call.
If it is still not possible to resolve matters then, so long as the child(ren) concerned are either under the age of 16 or under the age of 20, in full-time education and living with a parent receiving child benefit for them, then the Child Maintenance Service (CMS) could be asked to perform a calculation about how much child maintenance should be paid. The CMS can also be instructed to ‘Collect and Pay’ if necessary. (Please note, however, that the CMS can only be used in limited circumstances if the paying parent is living abroad and cannot be used at all if the receiving parent and child live outside the UK).
What then, if there is still a problem?
Older children of divorced parents
Except for financial orders in connection with a divorce, courts will not normally make a basic maintenance order if the CMS would have the power to deal with the matter. There are circumstances, however, when the court can and will be able to assist.
The relevant statute, in relation to the children of divorced parents, is the Matrimonial Causes Act 1973. Subject to the financial circumstances of the matter, the court can order either parent to make periodical payments, or lump sums, to or for the benefit of a child. Generally speaking such orders must not be made after the child(ren) reach 18 years of age or extend beyond the child’s 18th birthday. So, often, this power won’t come into play because the CMS would deal with the issue.
An area when the court’s powers often will be exercised, however, is in relation to maintenance for the ‘older child’, such as children who plan to, or already do, attend university. This is because an exception to the general rule above is that the court can make orders after, and extending beyond, the child’s 18th birthday if the child is/will be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation.
Another instance in which the court can order that a parent pay maintenance, or a lump sum, for or to a ‘child’ over the age of 18 is where special circumstances justify such an order being made. There is no definition of ‘special circumstances’ and it will be a case of fact and degree in any given case. By way of a guide, however, the court has found that special circumstances exist in cases of children suffering a physical or other handicap, particularly when that handicap causes them to be totally dependent on others for the rest of their lives.
What about the children of unmarried parents?
Schedule 1 of the Children Act 1989 applies where the unmarried parents of a child or children are separated. The court can order either parent to make financial provision for them. As above, the court can order either the payment of lump sums or ongoing maintenance. And once again, if and when the child is over the age of 18, then the court can order a parent to pay ongoing maintenance if the relevant child is undergoing education or other ‘special circumstances’ apply. The court’s approach to what does and doesn’t constitute similar circumstances is likely to be similar to that taken in matrimonial proceedings.
How much child maintenance do I have to pay?
Whilst the circumstances in which the court can make the various orders are set out specifically, the amounts which the court can order parents to pay need not be limited to those circumstances. In each case, the factors which the court must consider are very similar and include:
- The income, earning capacity and assets of each parent, now and in the future,
- The financial needs, obligations and responsibilities of each parent, now and in the future,
- The child’s financial needs and their own income, earning capacity and assets now and in the future,
- Any physical and mental disabilities of the child,
- The manner in which they are, or were expected to be, educated or trained.
Consequently, subject to the above factors, the court could order that a parent pay far more than for example tuition fees.
How long do I have to pay child maintenance for?
No time limit is provided orders for the older child, or the child in special circumstances. In the latter cases in particular, it is quite likely that applications could reasonably be made for these orders to last for the entire lifetime of the relevant child. Indeed, there are reported cases where such orders have been made.
It is probably fair to say that there is a general acceptance in society that children are dependent upon their parents for many years after they reach adulthood, and even after they have completed education. It is not unusual for children to take a gap year, or years, before then returning to education and the court could, subject to the relevant factors, make a maintenance order following or in anticipation of them entering university or going to college.
Please note that the court can make other financial orders relating to children, including top up and school fee orders. This are, however, beyond the remit of this article.