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Let us try to explain. We often find, when advising clients who are parents but not married, that they are unaware there is scope for receiving or paying maintenance for the children. This is a complicated area of family law, but it is often to our client’s surprise when I explain there is legislation (Section 15 and schedule 1 of the Children Act 1989) that provides for the parent with day to day care of the child the potential to apply for:
Transfer or settlement of property
We have encountered confusion from clients in relation to the first point on this list, as they rightly explain they thought that payments for the benefit of children are regulated by the Child Maintenance Service (CMS). However, the court does have the power to consider a claim for maintenance in the following very specific circumstances:
- The non-resident parent’s income is higher than the limit where the CMS deals with maintenance (currently £156k pa gross);
- Or in respect of educational expenses;
- Or for expenses connected with a child’s disability;
It is worth reiterating that there is no automatic entitlement to additional maintenance through the courts, simply by meeting the above criteria. For example, if one parent earns £157k pa, it does not automatically mean that the other party should expect the court to award additional maintenance to that they would have to pay under the CMS.
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In considering any claims for maintenance (if the above criteria are met), lump sums or transfer/settlement of property, the court will consider:
- The income, earning capacity, property and other financial resources which each person has or is likely to have in the foreseeable future.
- The financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;
- The financial needs of the child;
- The income, earning capacity (if any), property and other financial resources of the child;
- Any physical or mental disability of the child;
- The way the child was being, or was expected to be, educated.
It is important to remember that the sole intention of this legislation is to provide for any children. As a result, except in special circumstances, any order is only likely to provide until the youngest child is 18 or finishes secondary education. Married or divorced parents can also make these applications although they are more likely to rely upon separate legislation. Therefore, we find that it is cohabiting/unmarried parents who benefit most from this advice.