The breakdown of a relationship that leads to separation is never easy for you and your family. Along with all the other considerations, legal parents also have a duty to provide for their children financially.
Usually, if you are the parent who is not living with your children following a separation then you should contribute financially to the other parent for your children’s care. Often this is by way of regular maintenance payments and/or the provision of assets or capital lump sums (such as providing a home).
However, if the arrangements for financial support can’t be agreed, there are various legal steps which can be taken to resolve your dispute.
Child Maintenance Service (CMS)
Court orders on divorce and civil partnership dissolution
The court has the power to make wide-ranging financial orders in relation to couples who are married or civil partners and this includes orders designed to make provision for children. The court might order that you should pay regular maintenance or school fees, or that you should own or have the right to continue living in a shared home if you are caring for children. All of this will be considered by the court as part of the process to resolve your financial dispute.
These particular court orders are relevant to any child who is considered a ‘child of the family’, including step-children and children who are conceived through assisted reproduction and are not the legal children of both of you. However it only applies to parents and step-parents who are married or in a civil partnership.
Free standing court orders
The courts can also make financial provision orders for the benefit of your children under Schedule 1 to the Children Act 1989 [link to act]. These types of orders are suitable for unmarried couples following a separation and frequently accompany applications under the TOLATA.
The Court can make one or more of the following financial orders:
- Child maintenance (in addition to the maximum maintenance as assessed currently by the CMS), which can include the cost of a nanny, school fees and, in some cases, the costs of university education
- A capital lump sum for costs directly referable to your child (for example, the purchase of a car or the costs of equipping your child’s home)
- A transfer or settlement of property (on trust) for the purpose of providing a home for your child during their minority (which will mean that once your child completes their secondary or tertiary education, the property which was transferred or held on trust will be returned to the parent who funded or provided it)
The court will take into account both statutory and extra-statutory factors when deciding on the content of such orders.
The statutory factors
The court takes into account all the circumstances of the case when deciding what order to make, including:
- The income, earning capacity, property and other financial resources which any parent of your child (or the applicant or person in whose favour the court proposes making the order) has or is likely to have in the foreseeable future
- The financial needs, obligations and responsibilities which any parent of your child (or the applicant or person in whose favour the court proposes making the order) has or is likely to have in the foreseeable future
- The financial needs of your child
- The income, earning capacity (if any), property and other financial resources of your child
- Any physical or mental disability of your child
- The manner in which your child was being, or was expected to be, educated or trained
And in the case of step-children:
- Whether a person who is not the mother or father of your child had assumed responsibility for the maintenance of your child, and if so, the extent to which and basis on which he or she assumed that responsibility and the length of the period during which he or she met that responsibility
- Whether a person who is not the mother or father of your child assumed responsibility for the maintenance of your child knowing that he or she was not his or her child
- The liability of any other person to maintain your child
Court orders are made with your child’s best interest in mind and not the parent. So they will focus on the financial needs of your child, particularly any special needs, disabilities or education needs they may have.
Contact our Family Law specialists
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