We answer some of the difficult questions surrounding offshore income and child maintenance.
Legislation introduced in 1991 meant that on the face of it, a move abroad and habitual residence was a way for a non-resident parent to evade financial responsibility for a child.
This changed in 2000 when the rules were amended to allow for certain circumstances when the CSA would still have jurisdiction to enforce maintenance.
These circumstances include:
Additionally, the vagueness of the term “habitual residence” can give rise to grey areas. The CSA does not define habitual residence, nor is there any case law that deals with this definition in the context of the CSA.
In general terms, “habitual residence” would suggest that you are resident in the country in which you are living. However, if the non-resident parent’s sole motivation for a move abroad is work commitments and intends to return to the UK, the CSA could view their habitual residence as being in the UK.
This is especially true if there is already home and family in the UK or if the parent spends more than 92 days a year in the UK and is registered as a resident for tax purposes.
Good family law solicitors will explain this before coming to a child support agreement, should it be relevant to your case.
When doubt hangs over a parent’s “habitual residence”, that parent may face a bill for ongoing maintenance and arrears accrued during time spent abroad.
If this bill is left unpaid, it can be enforced by the CSA through the courts, using a Deduction of Earnings Order. This would mean that the CSA could take a sum out of the parent’s earnings each month at source.
Alternatively, the non-resident parent could contact the CSA and agree on how much they can pay and when.
If arrears of maintenance accrue through the courts and are backdated by more than 12 months, you must obtain leave of the court before you can reclaim these.
By contrast, the CSA has no cut off date for arrears and are entitled to enforce arrears that are more than 12 months old. A CSA assessment will not accrue arrears if the parties suspend it but will otherwise continue to accumulate.
Ultimately, it should be remembered that child maintenance is money owed to the child, not the other parent. Child maintenance is the responsibility of the non-resident parent and should be paid.
If the non-resident parent believes that their assessment is wrong or cannot afford to pay, they can ask for a review or appeal their assessment. However, this must be done within one month of receiving the letter detailing the assessed amount they are liable to pay.
So, it seems that non-resident parents who think moving abroad will help them elude the CSA may have to think again. Parents who move abroad for legitimate reasons also need to consider whether they remain subject to the CSA’s assessments – and prepare accordingly. Talk with a divorce lawyer to learn more.
Family lawyers often hear the question, ‘what can I do if the other parent won’t pay child support.
The Reciprocal Enforcement of Maintenance Orders (REMO) allows orders made for maintenance in a UK court on behalf of a UK resident to be enforced by either the courts or authorities of the foreign country in which the non-resident parent is living. You can find a list of REMO child maintenance countries party to this process on the CSA website.
To begin this process, the parent with care of the children should either apply to the magistrates’ court to register an existing order abroad or apply to the magistrates’ court to make an order for maintenance to be registered abroad.
The order then effectively becomes an order of that foreign country and is governed by the law of that country.
In the context of the Child Maintenance and Enforcement Commission, the tribunal case of GF v CMEC (2011) UKUT 371 (AAC) is a relevant example.
It centres on an argument about whether an English father should pay his English child maintenance if he is working abroad. You might think the obvious answer is “yes”. After all, what difference does it make where he earns his money?
In court, that fact would not be a bar. But for the Child Maintenance Enforcement Commission (CMEC), it is. You cannot apply to the Child Support Agency (CSA) for a child maintenance arrangement unless “the parent without the main day-to-day care lives in the UK, or works in the civil service, the armed forces or for a UK-based company.”
If you would like more information regarding exemptions from paying child support, enforcing payments, or anything else to do with divorce, contact Stowe Family Law’s family law solicitors today.
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