Children - Maintenance

CHILD SUPPORT AGENCY

The Child Support Agency ( CSA ) has responsibility for assessing the level of maintenance the non-resident parent should pay the parent with care on behalf of the child on divorce. The Government intends to scrap the CSA, but it will be replaced by an alternative agency, there are no plans to return jurisdiction to the Courts, except perhaps for Consent Orders made after 03.03.03.

The Court can only become involved in exceptional circumstances, such as:

1. For a step-child who is regarded as a child of the family.

2. When the absent parent is habitually resident abroad.

3. If the non-resident parent's net weekly income exceeds £2,000.00 the parent with care can apply to the Court for a TOPPING UP ORDER.

4. For the costs of education.

5. For help with disability costs.

6. If a Maintenance Order was made by the Court before 03.03.03.

7. If a Maintenance Order was made by the Court after 03.03.03 and the Order is less than 12 months old. After that either party can apply to the CSA for an assessment. (This facility may be removed as mentioned above in which case the Courts will retain Jurisdiction).

WHAT IS THE CSA ASSESSMENT?

For claims made after 03.03.03 there is a simple formula, based upon the absent parent's net income after certain allowable deductions. This formula is explained on the CSA website http://CSA.gov.uk. This formula is also explained on our website http://bsdivorcesolicitors.co.uk

The amount payable is reduced if the absent parent has other children living with him/her.

The assessment is reduced again if the assessed child stays with the absent parent more than a certain number of nights per year.

The parent with care's income is ignored, as is the income of a cohabitee if the absent parent is living with someone.

The absent parent can apply for a downward variation and the parent with care can apply for an upward variation provided you can show that a set category for variation applies.

The formula is simple but the process is not!!!

Where applications were made prior to 03.03.03 the formula is very complex.

NON-PAYERS

These people do exist. There are , of course, some genuine cases, but some parents blatantly refuse to pay anything towards their own children's upbringing. The CSA have various methods of enforcement but have not been successful in making many absent parents pay to support their own offspring. My preferred method of enforcement would be to make them wear billboards whenever they went out in public. They could be similar to warnings you see on cigarette packets:

DATE ME IF YOU DARE - MY CHILDREN COULD BE STARVING AND I DON'T CARE

I LIKE TO SPEND ALL MY MONEY ON MYSELF - SO YOU ARE PAYING FOR MY KIDS

I AM MEAN WITH MONEY - ASK MY KIDS

Divorce

HOW TO TELL IF YOUR SPOUSE WANTS A DIVORCE

IF YOU ARE A MAN

1. A classic sign is INDIFFERENCE. Unfortunately, men often misinterpret this and think that their marriage has improved. A lack of nagging and fighting does not usually mean that your wife has settled down to accept that you can come and go as you please, treat the house like a hotel, throw your washing on the floor and fall asleep on the sofa every night.

An illustration. Years ago I knew a cleaner who worked 60 hours a week and brought up 3 children whilst her husband was a drunk. Her 14 year old son said to her that when he grew up he wanted a wife just like her. All his mates' mums were horrible, they locked out their husbands, threw their clothes out the windows of their high rise flats and generally screamed like fishwives if their husbands dared to come home drunk. His mother replied that the reason she made no fuss was that she did not care if his father never returned and with that changed the locks and her life by booting out her husband.

Expect a divorce petition in the mail if you regularly return home at 2am and questions are no longer asked.

2. YOUR WIFE'S APPEARANCE IMPROVES

Your wife may suddenly lose 3 stone (you might think it happened overnight but she has probably been on a diet for 6 months) or change her hairstyle and get a job she enjoys at last. This doesn't mean that she has found another man, more likely that she has found herself and she may discard you with the old frumpy image.

3. YOUR WIFE'S FRIENDS GET DIVORCED

This is the old safety in numbers. Plus, people tend to chose friends they have something in common with. So, if your wife is telling you that all her friends' husbands are rats beware, what is she telling them about you?

IF YOU ARE A WOMAN

1. HIS BEHAVIOUR WORSENS

The majority of divorce petitions in England are filed by women and the majority are based on behaviour, i.e., it is unreasonable to expect this woman to live with this man given his behaviour and her temperament.

Men are horrible then? Not necessarily. If a man wants a divorce, or out of any relationship for that matter, a throwback to chivalry makes it very difficult for a man to dump a woman. Therefore he will behave in such a way to make her dump him. Sometimes this backfires and there are plenty of doormats around, but generally, if he doesn't call it means he doesn't want to see you. Men accept women criticising them, they are used to it, what they have difficulty with is abandoning a woman, some just can't bear to see a woman cry. Anger they can cope with.

2. HE MEETS THE ONE

Lots of men have long term affairs which they consider separate to their marriage (especially if their wife has removed herself from the matrimonial bed) and would not dream of leaving their wife, children and home.

The worry is when he thinks he is truly in love for the first time ever, forgetting your courtship and how desperate he was to marry you twenty years ago. She will be 10 years younger than you, a work colleague, and he will buy her a bracelet, and take her to European cities for romantic breaks, and you will find out because he wants you to find out and divorce him!!!!!
SAVING YOUR MARRIAGE

Usually, by the time people decide to get divorced it is too late to save their marriage. An annual review is a good idea, like a car service or a medical, study your marriage together and plan the next 12 months. If this sounds like too much hard work, keep my number handy, you will probably need it in a few years!!!!!!!!!!!!

The Myths of Cohabitation

COMMON LAW HUSBAND AND COMMON LAW WIFE

There is no such thing as a Common Law Husband or Common Law Wife in English law. Couples who chose to live together without getting married do so without the benefit of matrimonial legislation and there is no notion of fairness or reasonableness built into the law. The rules that apply to determine the division of assets are exactly the same rules that would apply to two strangers happening to live under the same roof.

THE MYTHS OF COHABITATION

- Unmarried couples living together for a period of time acquire the same rights as married couples - THEY DO NOT

- A cohabiting partner can claim maintenance from their partner if the relationship breaks down - THEY CANNOT (no matter how long they have lived together)

- An unmarried partner's name is not on the mortgage but she can claim an interest in the property because she has paid the utility and food bills for years and has decorated the house and paid for the carpets - SHE CANNOT ( such payments are irrelevant)

- An unmarried partner will automatically inherit the estate if their partner dies, so a will is unnecessary - THEY WILL NOT

- Unmarried fathers have the same rights towards their children that unmarried mothers have - FREQUENTLY THEY DO NOT

WHAT CAN I DO?

Unmarried cohabitation is on the increase, as is relationship breakdown. Couples should properly record the shares in which the property is owned, nominate beneficiaries under pension policies and life assurance policies and make a will, especially if they have children.

Draw up a COHABITATION AGREEMENT. They have yet to be fully tested in court but provide useful evidence of a common intention.

Or...........you could get married!!!!!!!!!!

Divorce - Procedure

HOW CAN I GET A DIVORCE?

Many people want to divorce because they simply don't love each other any more. Why not? It is important to think through your feelings and try to fix things. Unfortunately, by the time people consult a solicitor it is far too late to save their marriage.

It is NOT possible in English Law to get divorced because you have fallen out of love with each other. If you file for divorce you are known as the petitioner and your spouse is known as the respondent.

IRRETRIEVABLE BREAKDOWN

The only ground for divorce is irretrievable breakdown and the Court can only make a finding if sufficient evidence is supplied as proof of one of the five facts:

1. Adultery
It is prudent only to proceed on this basis if the other side is prepared to sign a confession statement. If not, you could use their inappropriate behaviour with a third party as evidence for a behaviour petition.

2. Behaviour
The most popular petition. The behaviour cited needs to be sufficient that it is unreasonable to expect the petitioner to live with the respondent, given the petitioner's disposition. The latest incident of behaviour listed must be within 6 months of the filing of the petition, otherwise the behaviour is regarded as stale. There are a lot of standard complaints, lack of love and affection (woman's petition), lack of sex (man's petition), no help with housework (woman's petition), spends too much money on clothes (man's petition), loves her cat,dog,horse,goldfish more than me (man's petition), obsessed with the internet (woman's petition).

3. Desertion
Rarely used. It is necessary to show that the respondent has deserted the petitioner for at least 2 years with intent to bring cohabitation to a permanent end, without either just cause or the petitioner's consent.

4. 2 years separation
With the respondent's consent.

5. 5 years separation
Without the other party's consent. This is a long stop date and the respondent can expect a petition to be delivered 5 years and two weeks (allowing for court administration) after the date of separation.

DIVORCE AND MONEY

It is possible to obtain a divorce without finalising the finances, but it is very unwise to do so, as the door is left open for your ex spouse to make a potential claim in the future. It is also unwise to proceed on a verbal agreement without finalising matters in a Consent Order, because people do change their mind........Especially women! (allegedly!)

Divorce - Assets

ARGUING OVER THE GOODS

Generally people fall into 3 groups:

1. THE GOOD
He/she can have everything.

These people have either moved on emotionally or they simply don't care about the T.V, often they are not even in the position to replace what they leave behind. There are lots of storage companies up and down the country making money out of storing their personal possessions, which their ex spouse's have off-loaded in exasperation. Lots of friends and families' lofts perform the same function.

2. THE BAD
Everything must be divided equally, including the china and the matching sofas, neither party ends up with a complete set of anything and old photograph albums can cause a huge source of debate.

These people are either driven by an innate sense of fairness (their own), are mean, or have no money to replace what they need.

3. THE DOWNRIGHT UGLY
Everything can burn before he/she can have anything.

These people have either not moved on emotionally or are basically nasty. If you do manage to get your graduation photo back it will be cut up into tiny pieces, the last page will be missing from all those novels you intended to read one day and a dead fish will be inserted in the glove compartment of your car.

If your marriage is rocky, or you are having an affair which your spouse has yet to find out about, it is worth keeping hold of your passport, driving licence and all credit cards.