The rules on child maintenance are changing and depend on the circumstances of each individual case.

Child maintenance cases generally fall into one of the following categories:-

  • An application has already been made to the Child Support Agency, or an application is made for 1 children 2013: Child Support Agency
  • New applications from 2014: Child Maintenance Service
  • Voluntary Family Based Arrangements
  • There are court proceedings, usually as part of a divorce or dissolution: Court Proceedings

The first port of call for information on child maintenance is the website www.cmoptions.org.uk.

Terms Used

  • CSA – Child Support Agency
  • CMS - Child Maintenance Service
  • PWC - Parent with Care
  • NRP – Non Resident Parent

Child Support Agency

If the CSA is already involved, any assessment remains in place. The CSA will continue to exist to administer such assessments.

From 2014 the CMS took over the functions of the CSA for all new cases.

The CSA calculation is based on net income, the NRP is required to pay child maintenance as follows:-

  • 15% - 1 child
  • 20% - 2 children
  • 25% - 3 children or more

For assessments under the CSA scheme and the new CMS scheme the amount of maintenance is reduced if the child stays over night with the NRP for one night or more each week.

It is also reduced if the NRP is paying maintenance for other children, or there are children living in the same household. There are different rates for cases in which the NRP has a low or income or is on certain state benefits.

For more information and a child maintenance calculator visit the website www.cmoptions.org.uk.

Child Maintenance Service

The calculation is based on gross income and requires the NRP to pay child maintenance as follows:-

For gross income of up to £800 per week, the calculation is:-

  • 12% - 1 child
  • 16% - 2 children
  • 19% - 3 children or more

For income between £800 and £3000 per week, the NRP is required to pay:-

  • 9% - 1 child
  • 12% - 2 children
  • 15% - 3 children or more

There is an initial charge of £20 to use the CMS.

If the CMS acts as a collection agency, there is a charge of 20% which is added to the amount the NRP is required to be pay and the PWC has to pay 4% of the maintenance they receive.

Child Maintenance Calculator - Gov.uk

Family Based Arrangements

Rather than using the CSA or CMS parents are encouraged to use the calculation to prepare their own Family Based Arrangement. Guidance on Family Based Arrangements is on the cmoptions website, the form can be downloaded here.

This is very much the approach favoured by government which views child maintenance as a private arrangement between individuals.

Court Proceedings

Where there are financial remedy proceedings a court can make a child maintenance order if the parties agree. However, after 12 months either party can make an application for a child maintenance assessment.

In certain circumstances, for example, if the NRP has a high income, an application can be made to the court to ‘top up’ any assessment.

When someone dies, their property (known as their estate) passes to the people they name as beneficiaries in their will.

If there is no will, the law sets out who is entitled to inherit using what is called the intestacy rules. This is basically a list of family members, ranked by the closeness of their relationship to the deceased.

Should a partner, spouse, child or someone else who has been dependent financially on the deceased receive little or nothing from the estate, it may be possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

A claim using this act may also be made if one half of a marriage or civil partnership dies during divorce or dissolution proceedings without having concluded a financial settlement.

An unmarried partner is not classed as next of kin under the intestacy rules and has no automatic right to inherit. In order to bring a claim, the survivor has to demonstrate they lived with the deceased as man and wife or civil partners during the entire two years prior to the death. They also have to prove a “substantial contribution” was made towards their reasonable needs.

The court has wide discretion when making any orders under the Inheritance Act. It has to balance the financial needs and obligations of dependents and beneficiaries of the will or intestacy, taking into account:

  • the size and nature of the estate,
  • any physical or mental disabilities of the person making the claim
  • if appropriate, the conduct of the person making the claim
  • any other matters the court may consider relevant

Please note a claim under the Inheritance Act 1975 is not the same as contesting a will. If you would like to know more about this issue, please contact our wills and probate department.

There are many different reasons why family members step in to look after children when their parents are unable to do so.

It has long been considered that adoption within families is inappropriate, as it changes legal relationships and can be extremely confusing for the child. As a result, family placements were, until recently, usually secured by asking the court for a residence order in favour of the carers.

Residence orders allow adults looking after a child to have control over where he or she lives and equal responsibility with the parents. However, another option is now available and is becoming more common, known as special guardianship.

What is special guardianship?

Introduced in December 2005, special guardianship provides a middle ground between adoption and residence orders. It grants parental responsibility but, unlike a residence order, that authority can be exercised to the exclusion of the parents, offering carers full control of day-to-day decision making.

Special guardianship is more secure than a residence order, as the child’s parents do not have an automatic right to ask for it to be discharged. They would need the court’s permission (known as ‘leave’) to do this.

Can I apply to become a special guardian?

Broadly speaking, anyone other than the child’s parents can ask for a special guardianship order. There are rules about who has the right to apply and who needs to obtain leave from the court.

How do I apply to be a special guardian?

Anyone who wishes to apply for this type of order must notify the local authority of their intention. The local authority then has three months to produce a detailed report for the court and once this period has passed, an application can be made.

How will the court decide whether to grant the order?

When considering an application for special guardianship, the court’s focus will be on the child’s best interests. Every order is decided on its own merits.

Will I receive any support from the local authority?

All local authorities are obliged to put support in place for special guardians. As part of its report to the court, the council must consider whether those services are to be provided. This can include financial assistance among other things.

There is a widely held myth that after living together for some time, couples become “common law” husband and wife. This is not the case.

Cohabiting couples are treated very differently by the law to those who are married or in a civil partnership and despite being in a lengthy relationship, may find they have very little legal protection when it ends.
 
Unlike divorce, there are currently no laws specifically providing legal protection to separating couples. This means we have to look to legislation relating to property and children in cohabitation disputes – most commonly, the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) and the Children Act 1989.

What about the family home?

A major concern for separating couples is who will be entitled to remain at the shared home. The legal position depends on whether it is owned jointly or it is in the sole name of one party.

If ownership is shared, each party has a right to occupy the property. The purchase will have been structured in one of two ways, which are referred to as “joint tenants” or “tenants in common.”

A joint tenancy means that if one owner dies, their share passes automatically to the other. On this basis, it is likely that each party is entitled to an equal share on separation. Properties owned as tenants in common have a “deed of trust” or a “declaration of trust” that sets out each party’s share. This legally binding document is usually set up at the time the property is purchased and will demonstrate, for example, that if one party paid the deposit, he or she will receive this money back when the house is sold, before the proceeds are shared out.

When one party is the sole owner of the property, he or she has the right to live there and the other person has, on the face of it, no legal entitlement. However, if the non-owner can establish a beneficial interest, they may be able to claim a share that would give them a right to remain in occupation.

If you are the sole owner, you need to be aware that your partner may have a claim and could take steps to stop you selling the property without their agreement. In order to establish a beneficial interest, they would have to demonstrate it was always your intention that they would be entitled to a share by proving:

  • There is written documentation detailing this
  • There was an “understanding” or “common intention” that can be supported by financial or other contributions towards the household

If you are not the owner of the property, it can be very difficult to prove that you have a beneficial interest.

Does the situation change if there are dependent children?

If children are living with you, the law may give some limited extra protection to unmarried couples.

It may be possible to remain at the property with children if it is owned in joint names or in the other party’s sole name, until the youngest reaches 16, 18 or later if they go to university. If you cannot agree on what is to happen, the person wishing to stay may make an application to the court under the Children Act 1989.

Courts also have the power to make orders for payment of a lump sum or child maintenance. A one off payment has to have a specific purpose, such as expenses in anticipation of a child’s birth or the costs of converting a home for a disabled child.

Government figures indicate that hundreds of children are abducted from Britain every year and taken to foreign countries by one of their parents or guardian without the consent of the other.

We have the specialist knowledge required to deal with these situations, from issuing port alerts preventing a parent leaving the country to making the relevant emergency application through the Court for the return of the child or children.

 

 

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