Summary Highly detailed notes on variation to orders, enforcement, appeals, setting aside and more
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LPC - Legal Practice Course
Institution
LPC - Legal Practice Course
Full and in-depth notes on variations to orders, enforcement of orders and agreements, setting aside orders and agreements and appeals and more! A highly detailed and clearly written step-by-step approach to understanding and answering exam questions. The document breaks down each element you need ...
When parties make Child Maintenance agreements
And paying parents wants an undertaking recipient won’t go via CMS - The court would
never include this in a consent order
Child Support Act – s9(3) / (4) states that this CMS right to apply, if barred in consent
order, that clause is void.
Variations to maintenance orders:
The CSA allows for variation applications.
Variations are tightly controlled – CMS must agree it is just and equitable to
agree to the variation.
Variations can be made before and after the final order is granted
Special expenses (?): These are:
A. costs incurred by the non-R parent maintaining contact with a qualifying child
B. Costs attributed to a long-term illness / disability of another relevant child
C. Certain debts incurred before the parent became a non-R parent (generally
only if they were incurred for the benefit of both the parent and child)
D. The maintenance element of boarding school fees for the child
E. Mortgage payments on the home the non-r parent and parent with care
shared, provided the non-R no longer has an interest in the property and the
parent with care and child still live there.
These expenses must be of at least the threshold amount to be taken into account
(except ‘B’ which has no threshold) the threshold is £10 a week for each expense.
If the CMS considers any of these special expenses to be unreasonably high or to
have been unreasonably incurred, it may substitute such lower amount as it
considers reasonable, including nil (CSMCR reg 68).
If allowable, these expenses will be deducted from the gross weekly income of the
non-resident parent before making the maintenance calculation.
Non-resident parents may apply for a downwards variation of any maintenance
calculation on the basis of special expenses as set out above. There are in addition
rules which may result in an increase to the maintenance calculation. These are:
(a) The non-resident parent has unearned income of £2,500 or more per annum.
The amount will include such things as income from rental properties,
investments and dividend income. The non-resident parent will be treated as
having an additional weekly income equal to the amount of unearned income
divided by 365 and multiplied by 7 (CSMCR 2012, reg 69).
(b) The non-resident parent has assets, such as cash, shares or land with a net
value exceeding £31,250. Some assets (non-resident parent’s home, business
assets and assets which have been purchased from the gross weekly income
which has already been taken into account for the purposes of the
maintenance calculation) are excluded. The value of these assets is calculated
by applying the statutory rate of interest (currently 8% pa) and dividing it by
52. This amount is then added to the non-resident parent’s gross income.
1. For example, if the non-resident parent owned shares worth
£80,000, these would be taken to produce income of (£80,000 x 8%)
÷ 52 = £123.08 per week.
(c) The maintenance assessment is at the nil rate due to the non-resident parent
coming within a prescribed category, or at the flat rate due to the non-
resident parent being in receipt of a prescribed benefit, pension or allowance,
but the CMS is satisfied that the non-resident parent is in receipt of gross
income over £100 which would otherwise be taken into account. This would
cover, for example, the income of a non-resident parent who was a child. The
whole of this income will be taken into account as gross income (CSMCR 2012,
reg 70).
(d) The CMS is satisfied that the non-resident parent has unreasonably reduced
the amount of his income that would otherwise be taken into account as gross
income or unearned income, eg where a non-resident parent reduces the
amount of his gross income by making excessive payments into a pension
scheme. The whole amount of the reduction will be taken into account as
income (CSMCR 2012, reg 71).
The default maintenance:
Where there is insufficient information to make the calculation – the default rate is
£39 per week if there is one qualifying child, £51 per week if there are two qualifying
children and at £64 a week if there are three or more qualifying children.
VARIATION TO FINANCIAL ORDERS:
What does the law say / what does the parties consent order say / would court make
the variation?
s31(7) – court will consider children first / all circumstances
The MCA – s31(7)(a) says a variation can be made.
s31(1) and s31(2)(b) the maintenance payments could be extended.
The MCA s28(1) – when there is a bar to making new maintenance applications (for
example now asking for a lump sum) in a consent order, there can be no new application
made.
MCA s31(2): for the maintenance payments – allows the variation.
MCA s31(2) does not include a variation to a property adjustment orders. Also pension
shares and lump sums. But a house sale could be made.
Orders which can be varied:
Orders that can be varied are set out in s 31(2) of the MCA 1973 and include:
(a) maintenance pending suit and interim maintenance;
(b) periodical payments and secured periodical payments.
(c) payment of a lump sum by instalments. Generally, this power will only enable the
court to vary the number and amount of the instalments, so that the amount payable
overall will remain the same.
(d) payment of a lump sum ordered in relation to pensions under s 25B(4) or s 25C of
the MCA 1973;
(e) the sale of property under s 24A of the MCA 1973. This could be used, for
example, where the order for sale was made as a way of enforcing a lump sum
order. If the payer could find some other means to pay, he could then apply to have
the order for sale discharged.
Periodical payments:
Periodical payments orders are the type of order most commonly varied.
Applications are made either by the recipient to increase the amount being paid, or
by the payer to reduce or extinguish the payments.
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