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27 Living Together and Your Rights if You Separate

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1 Introduction

2. How is living together different from being married?

3. Setting up home

4. Making a ´living-together agreement´

5. When you are living together

6. If you or your partner dies

7. State benefits for people living together

8. Tax matters

9. Pensions

10. If you split up

11. Arrangements if you have children

The court expects you and your partner to be able to agree where the children will live (‘residence’) and how you will arrange to see them (‘contact’). If you can do this between you, there is no need for a court order. You should continue to make major decisions about the children together (the law requires this where both parents have parental responsibility), but you can each act on your own if you need to and if you have parental responsibility – for example, if you need to consent to emergency medical treatment.

You can get a Parenting Plan leaflet to help you work out your future arrangements. This and other helpful leaflets about children are available from your solicitor or Cafcass, the organisation that looks after children’s interests in family court proceedings (see ‘Further help’).

What if we can’t agree?
If you cannot decide which one of you the children should live with (‘residence’), or how often they should see the parent they don’t live with (‘contact’), you may need to apply to the court for an order. Before you do this, it is worth seeing whether you can use a mediation service to help you reach an agreement.

If mediation isn’t suitable for you, or if it doesn’t work, you can apply to the court for an order. You don’t have to have a solicitor to act for you but it is probably a good idea to get some legal advice before you start.

The Court Service produces a helpful leaflet about court proceedings and children, called ‘Children and the Family Courts’. This is available from the Court Service website. See ‘Further help’ for details.

The court will try to see if you and your partner can come to an agreement. If you can’t agree, the court will make an order. But the court will make an order only if this would be better for the child than not making one. Most cases involving children are settled by agreement at a reasonably early stage. This is generally better for everyone and certainly saves a lot of legal costs.

If contact arrangements are causing problems, it may be helpful to use a child contact centre as a neutral meeting place. Solicitors and courts will have details of your local centre. See ‘Further help’ for how to contact the National Association of Contact Centres.

What if there are specific issues we can’t agree on?
You can apply for a ‘specific issue order’ if you need the court to decide a single matter, such as where your child should go to school.

Also, the court can make a ‘prohibited steps order’ to stop one parent doing something that the other parent disagrees with, such as changing the child’s surname.

Supporting your children
You and your partner will have to work out how you are going to support your children, and whether one of you is going to pay maintenance to the other. For most people, this means coming to a private agreement about who will pay what.

If you don’t want to do this, or you can’t come to an agreement, in most cases, you can use the Child Support Agency (CSA). This is a government body that will look at your situation, and decide how much maintenance you or your partner should pay. However, the CSA can deal only with maintenance from a child’s parent by blood or by adoption. See ‘What if we can’t agree?’ for more about this.

Before October 2008 you had to use the CSA if you were claiming benefits, but this rule has been stopped.

If you are receiving Income Support or Jobseeker’s Allowance, you can keep up to £20 a week from the maintenance paid by your ex-partner without it affecting your benefit payments. Child maintenance has no effect on your entitlement to Council Tax Benefit, Housing Benefit or tax credits.

The CSA has set up a new service called Child Maintenance Options (CMO), which can advise you about maintenance. See ‘Further help’ for its details.

How do I make a private agreement?
You can make a private agreement with your partner by working out what you think is a fair figure and putting it in writing. You can download an agreement form from the Child Maintenance Options website.

The website also has guidance on working out how much child support you or your partner would have to pay if you used the CSA instead. Or you could ask your solicitor for advice. But you can come up with your own figure if you feel the CSA’s figure is not enough for your family’s situation.

A private agreement is not legally binding, so if your partner fails to pay what was set out in the agreement you can’t take them to court. If your partner won’t keep to the agreement you can normally apply to the CSA.

What if we can’t agree?
If you can’t agree on maintenance, you will normally have to apply to the CSA. But the CSA can only make maintenance rulings where it has ‘jurisdiction’. This means if all the following points apply to you:

  • Your child is the child (by birth or adoption) of both parents. (This means that stepchildren can’t get support from their step-parents under the CSA.).
  • You, your child and their other parent all normally live in the UK (or you live abroad but work for a UK employer).
  • The non-resident parent is not living in the same household as the child.
  • The child is under 16, or under 19 and in full-time education up to A-level standard.

What if I can’t use the CSA?
If the CSA doesn’t have jurisdiction, you will need to get a court to make an order about maintenance.

The court can also make orders about other matters that the CSA can’t, including:

  • for school fees;
  • for the particular needs of a disabled child;
  • for a ‘top-up’ order if the maintenance that the CSA can order reaches a (very high) ceiling; or
  • to vary an existing order (in certain circumstances).

If your child’s father or mother lives abroad, then there are ways of enforcing a maintenance order made in UK courts in some other countries. You will need a solicitor’s help to do this.

What if my partner is not my child’s other parent?
If your partner is not your child’s other parent, then you cannot use the CSA or get a court order against him or her. You will have to pursue the child’s actual parent or rely on your partner’s goodwill.

How is CSA maintenance worked out?
The CSA works out maintenance by looking at the non-resident parent’s net (after-tax) earnings and the number of children they must support. From these earnings, the non-resident parent can take off certain pension contributions and an allowance for any new children or stepchildren. He or she will then pay:

  • 15 per cent of their remaining income for one child;
  • 20 per cent for two children; or
  • 25 per cent for three or more children.

The amount of child support paid for the children also depends on the number of nights they spend with each parent. If you have children who live with you in a second family, this will be taken into account when child support is calculated.

The CSA is able to calculate maintenance on the net income of the non-resident parent only up to £2,000 a week. If their income is higher than this, you may be able to apply to the court for a top-up order, which will give you more maintenance.

How do I apply to the CSA for maintenance?
You can apply online, by phone or by getting an application form from the CSA (see ‘Further help’). After you have made your application, the CSA will write to your partner with another form that they have to fill in and return within four weeks. The CSA will then make a maintenance assessment and tell you both how much it should be.

12. Sorting out the home

13. Sorting out other items you own

14. Dealing with emergencies

15. Terms used in matters to do with living together

16. Further help

17. About this leaflet

The leaflets in this series give you an outline of your legal rights. They are not a complete guide to the law and are not intended to be a guide to how the law will apply to you or to any specific situation. The leaflets are regularly updated but the law may have changed since this was printed, so information in it may be incorrect or out of date.

If you have a problem, you will need to get more information or personal advice to work out the best way to solve it. See 'Further help' for sources of information and advice.

This leaflet is published by the Gurkha Free Legal Advice (LSC). It was written in association with Imogen Clout, a solicitor and mediator specialising in family law.

Leaflet version: January 2009

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