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3 Divorce and Separation

Download Divorce and Separation (PDF File, 381kb)

1. Introduction

2. Where to start

3. Separation

4. Divorce

5. If you have children

6. 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 does not affect 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 contact 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.

If you are going through a divorce, you can ask the court to turn your agreement into a ‘consent order’. This is an order where both of you agree the terms and get the court to approve it. The advantage of doing this is that it makes the agreement legally binding, so you can enforce the payments.

If your partner doesn’t pay what is set out in your private agreement, you can only take them to court if the agreement has been turned into a consent order. If this has not happened, you must apply to the CSA, which normally has powers to enforce payments.

If you or your partner wants to stop a consent order and use the CSA instead, you can do this after the order has been in force for at least a year.

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 is where 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 one of the parents lives abroad but works 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:

  • school fees;
  • meeting the particular needs of a disabled child;
  • a ‘top-up’ order if the maintenance that the CSA can order reaches a (very high) ceiling; or
  • varying 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 to make them pay maintenance. You can get a court order against them, if you can show that they have treated your children as their own. Otherwise 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. If this figure is more than £200 a week, the non-resident parent can take off certain pension contributions and an allowance for any new children or stepchildren, and 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.

If the non-resident parent earns less than £200 a week then they must pay child support at a reduced rate.

The amount of child support paid for the children also depends on the number of nights per week 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 only able to calculate maintenance on the net income of the non-resident parent 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.

7. Money and property

8. Making arrangements should you die

9. Dealing with emergencies

10. Terms used in divorce and family law

11. Further Help

12. About this leaflet

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: May 2009

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