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Financial Claims for Children of Unmarried Parents

Can I get child maintenance if I’m not married and separated from the other parent?

If you are not married and separated from the other parent, you may be entitled to child maintenace.

This article covers

  • eligibility for child maintenance if you’re not married and separated from the other parent
  • child maintenance service (CMS) and key points to consider
  • when to apply for maintenance using Schedule 1 and the process

Eligibility

If you, your child(ren) and their other parent are living in the UK, you can apply through the Child Maintenance Service (CMS) for assessment and enforcement of child maintenance. The CMS calculator (www.gov.uk) can be used to work out how much the non-resident parent should be paying towards the needs of their child. The calculator requires some information including:

  • the average number of nights a child spends with each parent
  • the other parent’s gross income (total income before tax and benefit deductions)
  • the number of children the other parent is responsible for paying maintenance towards.

This is calculated using a statutory formula that cannot be altered.

The greater the other parent’s income, the less time they spend with the child overnight and the fewer children they are responsible for, the greater the CMS award will be. A CMS award will not be granted if the other parent falls under any of the following categories:

  • Has equal shared care with the resident parent;
  • Is a full-time student with no income;
  • Is in prison; or
  • Is living outside of the jurisdiction of England and Wales and is not employed by the armed or civil services including the NHS.

If it is safe for you to do so, you can privately arrange for payments to be made between yourself and the other parent, although you will have to apply to the CMS in order to enforce this agreement. The CMS has the power to enforce payment, including the possibility to recover payment directly from the other parent’s employer and reducing the other parent’s benefits.

For more details on the CMS please visit their website Manage your Child Maintenance Service case – GOV.UK (www.gov.uk).

Claiming Child Maintenance when Abroad

What if we’re expats and living abroad?

Can I get financial support from the other if we are separated and unmarried?

The power of the CMS is limited to within the jurisdiction. So if you, your child and/or the non-resident parent are living outside of England and Wales, then the CMS will not have the power to assist you. However, you may still wish to use the CMS calculator as a starting point for negotiations regarding child maintenance.

Using Schedule 1 when CMS is Limited

When the powers of the CMS are limited, Schedule 1 of the Children Act 1989 may be used to apply to the court for financial orders. Under Schedule 1, an unmarried parent may still be able to apply to the court for financial provision for the benefit of a minority child in relation to:

  • Educational expenses (including school fees);
  • Top-up maintenance when the non-resident parent earns more than £156,000 gross per year;
  • Additional periodical payments for children over the age of 18 who remain in education or have special circumstances.

You may wish to consider other forms of resolution with the other parent before making an application to the court including an independent agreement, lawyer-assisted negotiation or working with a mediator. The implications of each of these options can be discussed in full with one of our lawyers.

Whilst the parties and child(ren) are outside the CMS’ remit by living out of the jurisdiction, the Courts retain the power to make certain orders under Schedule 1. Under these circumstances, a Judge has the power to make orders in relation to four types of orders:

  1. (Secured) Periodical payments
    On-going, monthly maintenance until the child reaches 18 and/or completes full-time education, potentially to include university.
  2. Lump sums
    The Court can order one party to pay the other a lump sum or series of lump sums.
  3. Transfer and settlement of property
    The Court can order that property be transferred from one party or another or to be sold.
  4. Interim maintenance
    The Court can order that the Respondent parent contribute to the child or claiming parents costs relating to their needs pending the outcome of the application, including legal costs.

The Process for Schedule 1 Claims

You will have to prove that you are sufficiently connected to the jurisdiction, either by:

  • living with the child in England and Wales for at least 12 months before making the application (“habitual residence”) and/or
  • both being domiciled in England and Wales. Habitual residence and domicile explained.

Once a court application has been made under Schedule 1, you will receive a first hearing date from the Court to discuss case management. Going to Court can be an expensive process and we encourage you to contact us directly to discuss your circumstances in more detail. One of our senior lawyers can then advise you as to merits of your claim and provide bespoke cost and timescale estimates.

This article was written by Summer Balfour, one of our London-based trainee solicitors. Summer is currently studying for her Legal Practice Course whilst completing her training contract with Expatriate Law.

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