Full and in-depth structure and notes on child maintenance. A highly detailed and clearly written step-by-step approach to understanding and answering exam questions. The document breaks down each element you need to cover to answer a question on child maintenance. Contains extensive but easily com...
Parties divorcing:
(a) CSA 1991 for maintenance.
(b) MCA 1973 for lump sum/property adjustment order.
Parties staying married:
(a) CSA 1991 for maintenance
(b) DPMCA 1978 for £1,000 maximum lump sum
(c) MCA 1973, s 27 for lump sum
(d) CA 1989 for lump sum/property adjustment order.
Parties never married:
(a) CSA 1991 for maintenance
(b) CA 1989 for lump sum/property adjustment order.
Court will make the order when:
(a) where the child is a step-child
(b) where the child is aged 16–19 and in advanced education or is aged over 19
(c) where either parent or the child is not habitually resident in the UK
(d) to provide top-up maintenance
(e) to cover education expenses
(f ) to cover disability expenses
(g) by making a consent order.
How can maintenance be provided?
Applications can be made under the CSA via the party’s agreement or with an application made to the CMS, or the court can
deal with them in some circumstances under the MCA.
, CHILD MAINTENANCE PROVISIONS
Child maintenance Agreement:
Parties can come to an agreement between themselves regarding child maintenance payments. These are still enforceable –
via contract laws and must be in the form of a valid contract. The agreement cannot prevent ‘x’ making any future
applications to the CMS – s9(3) 7 (4) CSA. (cheaper / more amicable…)
Or…a consent order can be applied for… The agreement can be converted into a consent order including the same terms
agreement.
Child maintenance via court – consent order:
When can the court make an order:
There are limitations to the maintenance orders the court can make as most applications should be made to the CMS (s8(3)
CSA).
However… the court can make the order when:
When children are over 20 and in full time education
Stepchildren
Maintenance top-up
When the CMS has no jurisdiction, say because the child or non-resident parent is not habitually resident in the UK.
The court can make capital orders in favour of a child (lump sum and property adjustment orders)
The court can order PP’s be made in favour of the child – s23(1)(d) MCA.
When any financial order is made, the court must give their first consideration to the child – s25(1) MCA.
When a financial order is made with regard to a child, either being paid to them or for their benefit, the court will also have
regard to s25(3) MCA:
a. The financial needs of the child
b. The income, earning capacity (if any), property and other financial resources of the child
c. Any physical or mental disability of the child
d. The manner in which the parties to the marriage expected the child to be educated.
e. Section s25(2)(a,b,c & e) of the s25 factors should also be considered.
NOTE:
Provision a – the parties income / earning capacity / property / other financial resources
Provision b – parties financial needs, obligations and responsibilities
Provision c – standard of living
Provision e – parties physical or mental needs
APPLY – apply each part!
NOTE: under s4(10) CSA – once a consent order is made, parties cannot apply to the CMS for one year. (There are ways
around this such as agreeing between themselves via an ancillary contract for payment or re-payment the difference between
the order and the CMS calculation)
Stepchildren:
S25(4) requires the additional factors to be considered when the child is not a ‘natural’ child of the paying
spouse:
S25(4)(a): whether the party assumed any responsibility for the child’s maintenance, and the extent of this and
the length of time.
S25(4)(c): the liability of any other person to maintain the child.
As well as applying the s25(3) factors, the court will also acknowledge the CMS calculation which would be made if the
application was made via that route, thus solicitors should do the CMS calculation anyway. (do the calculation and then
return to what the question asks if appropriate – otherwise continue on)
Additional:
S8(6) – order additional payments on top of CMS amount if court thinks it is needed (only for wealthy families really)
S8(7) – order additional payments on top of CMS for educational expenses
S8(8) – order additional payments on top of CMS for meeting expenses due to child’s disability.
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