Intro
*In Lawrence v Gallagher, COA confirmed that the same principle applies on
dissolution of civil partnerships.
The question is on financial provision, where the court redistribute the wealth of the
parties upon the divorce of R and P. R is the respondent and P is the petitioner.
They have been married for 23 years and have two children C aged 12.
Court power - Child
The court’s powers to grant financial provision upon divorce have been greatly
affected by the Child Support Act 1991, 1995 and Child Maintenance and Other
Payment Act 2008. In essence, before exercising its jurisdiction to make financial
provision and property distribution order, the court must be apprised of whether the
Child Maintenance Service has jurisdiction over provision for the children of the
marriage. Where the CMS has jurisdiction, the court’s jurisdiction is confined to the
circumstances set out in S8 of CSA 1991.
CMS has jurisdiction
For C’s financial provision, P can apply under S1(1) Child Support Act 1991 as
each parent of a qualifying child is responsible for maintaining him and according to
S1(2) a non-resident parent shall be taken to have met his responsibility to maintain
C by making periodical payment of maintenance. R and P is legal and nature parent/
adoption parent/ biological parent according to Human Fertilisation and Embryology
Act 2008/ for C (S54), who is under 16/under 20 receiving full-time education (S55),
and who will be categories as qualifying child according to S3(1)(a) as one of his
parent is, in relation to him, is non-resident parent / S3(1)(b) as both of his parent is,
in relation to him, is non-resident parent. R will be non-resident parent according to
S3(2)(a) as R is not living in the same house hold with C and (b) C has his home
with a person who is in relation to him, a person with care. P will be person with care
according to S3(3)(a) with whom child has his home, (b) who usual provided day to
day care for the child and (c) who does not fall within a prescribed category of
person.
Thus, Child Maintenance Service would have jurisdiction over the matter. Child
Maintenance Service which would have responsibilities for the assessment, review,
collection and enforcement of maintenance payment. Advise P to consider voluntary
arrangements by R and P before an application for child support maintenance. If it is
not possible, P can rely on CMS to calculate the maintenance payment based on
certain percentage of non-residential parent’s gross weekly income according to
Schedule 1. Under S2, the secretary of state shall have regard to the welfare of any
child likely to be affected by the decision. In French v The Secretary of State for
Work and Pensions & Anor, COA confirmed that winnings of professional gambler
with no other source of income were not earning to be taken into account for the
, purposes of child maintenance assessment. If the child stays with non-resident
parents for more than 52 nights a year, the non-resident parent will get discount on
child maintenance according to the nights the child stays with him.
Court - Top Up Order
P can apply to the court under S8 CSA 1991 even CMS has jurisdiction over the
matter if P wants additional maintenance as R (the non-resident parent) is earning
more that the CMS’s maximum, currently 104k per year either unsecured or secured
periodical payment (S8(6)), lump sum order / property adjustment order / C will be
receiving training at an educational establishment for a trade profession or vocation
(S8(7)) / for expenses of C with some disability (S8(8)) for the benefit of C.
Court – CMS no jurisdiction
For C’s financial support, P can’t apply under Child Support Act 1991 as step
parents do not satisfy the definition of parent under S54 Child Support Act 1991/ C
is not qualifying child / C is between 17-20 and not receiving full time education or
receiving advanced education / C is over 20, thus P can apply under Matrimonial
Cause Act 1973. The courts may make maintenance or other order for a child who
is child of the family, either is child of both parties (S52(1)(a)) or that is child whom
the step parent has treated as their own child (S52(1)(b)).
Step-parent - Where the child is a child of the family, but no financial provision is
sought from an individual who is his or her biological parent, S25(4) direct the court
to have regard to whether R assumed any responsibility for the child’s maintenance
and, if so, to the extent to which, and the basis upon which, the party assumed such
responsibility and to the length of time for which the party discharge such
responsibility knowing that the child was not his or her own and court may look at the
liability of any other person to maintain the child (Re A(Child of the Family)(1998) -
grandparents).
Court Orders - Child
Checklist –
S25(3)(a) financial needs of the child, (b) income, earning capacity, property and
other financial resources of the child, (c) any physical or mental disability of the child,
(d) the manner in which he or she was being, and in which the parties to the
marriage expected him or her to be, educated or trained and (e) the financial
resources and financial needs of spouses, the standard of living enjoyed by the
family before the breakdown and any disability of either party to the marriage S25(2)
(a)(b)(c)(e).
*In Lawrence v Gallagher, COA confirmed that the same principle applies on
dissolution of civil partnerships.
The question is on financial provision, where the court redistribute the wealth of the
parties upon the divorce of R and P. R is the respondent and P is the petitioner.
They have been married for 23 years and have two children C aged 12.
Court power - Child
The court’s powers to grant financial provision upon divorce have been greatly
affected by the Child Support Act 1991, 1995 and Child Maintenance and Other
Payment Act 2008. In essence, before exercising its jurisdiction to make financial
provision and property distribution order, the court must be apprised of whether the
Child Maintenance Service has jurisdiction over provision for the children of the
marriage. Where the CMS has jurisdiction, the court’s jurisdiction is confined to the
circumstances set out in S8 of CSA 1991.
CMS has jurisdiction
For C’s financial provision, P can apply under S1(1) Child Support Act 1991 as
each parent of a qualifying child is responsible for maintaining him and according to
S1(2) a non-resident parent shall be taken to have met his responsibility to maintain
C by making periodical payment of maintenance. R and P is legal and nature parent/
adoption parent/ biological parent according to Human Fertilisation and Embryology
Act 2008/ for C (S54), who is under 16/under 20 receiving full-time education (S55),
and who will be categories as qualifying child according to S3(1)(a) as one of his
parent is, in relation to him, is non-resident parent / S3(1)(b) as both of his parent is,
in relation to him, is non-resident parent. R will be non-resident parent according to
S3(2)(a) as R is not living in the same house hold with C and (b) C has his home
with a person who is in relation to him, a person with care. P will be person with care
according to S3(3)(a) with whom child has his home, (b) who usual provided day to
day care for the child and (c) who does not fall within a prescribed category of
person.
Thus, Child Maintenance Service would have jurisdiction over the matter. Child
Maintenance Service which would have responsibilities for the assessment, review,
collection and enforcement of maintenance payment. Advise P to consider voluntary
arrangements by R and P before an application for child support maintenance. If it is
not possible, P can rely on CMS to calculate the maintenance payment based on
certain percentage of non-residential parent’s gross weekly income according to
Schedule 1. Under S2, the secretary of state shall have regard to the welfare of any
child likely to be affected by the decision. In French v The Secretary of State for
Work and Pensions & Anor, COA confirmed that winnings of professional gambler
with no other source of income were not earning to be taken into account for the
, purposes of child maintenance assessment. If the child stays with non-resident
parents for more than 52 nights a year, the non-resident parent will get discount on
child maintenance according to the nights the child stays with him.
Court - Top Up Order
P can apply to the court under S8 CSA 1991 even CMS has jurisdiction over the
matter if P wants additional maintenance as R (the non-resident parent) is earning
more that the CMS’s maximum, currently 104k per year either unsecured or secured
periodical payment (S8(6)), lump sum order / property adjustment order / C will be
receiving training at an educational establishment for a trade profession or vocation
(S8(7)) / for expenses of C with some disability (S8(8)) for the benefit of C.
Court – CMS no jurisdiction
For C’s financial support, P can’t apply under Child Support Act 1991 as step
parents do not satisfy the definition of parent under S54 Child Support Act 1991/ C
is not qualifying child / C is between 17-20 and not receiving full time education or
receiving advanced education / C is over 20, thus P can apply under Matrimonial
Cause Act 1973. The courts may make maintenance or other order for a child who
is child of the family, either is child of both parties (S52(1)(a)) or that is child whom
the step parent has treated as their own child (S52(1)(b)).
Step-parent - Where the child is a child of the family, but no financial provision is
sought from an individual who is his or her biological parent, S25(4) direct the court
to have regard to whether R assumed any responsibility for the child’s maintenance
and, if so, to the extent to which, and the basis upon which, the party assumed such
responsibility and to the length of time for which the party discharge such
responsibility knowing that the child was not his or her own and court may look at the
liability of any other person to maintain the child (Re A(Child of the Family)(1998) -
grandparents).
Court Orders - Child
Checklist –
S25(3)(a) financial needs of the child, (b) income, earning capacity, property and
other financial resources of the child, (c) any physical or mental disability of the child,
(d) the manner in which he or she was being, and in which the parties to the
marriage expected him or her to be, educated or trained and (e) the financial
resources and financial needs of spouses, the standard of living enjoyed by the
family before the breakdown and any disability of either party to the marriage S25(2)
(a)(b)(c)(e).
