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Maintenance claims - England and Wales

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1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of England and Wales?

Parents can pay maintenance for their children or any child of the family to the person with care.

Parents can pay maintenance to their children under the age of 18. Upon application a “child” over the age of 18 can receive maintenance from parents for further education, where they are undergoing training for a trade, vocation or profession or where there are special circumstances (Children Act 1989 Schedule 1).

Child support maintenance is paid by parents who live apart from their children via the Child Support Agency – a Government agency which determines maintenance through an administrative rather than a judicial process - if the child is under 16, or is under 19 in full-time education which is not advanced education (at school or an equivalent educational establishment). It is paid to the parent or person with care. The parent or person with care of the child applies to the Child Support Agency. The amount is calculated by the Child Support Agency. The weekly payment is made by the non-resident parent. The non-resident parent can apply to pay maintenance.

A divorced spouse can pay maintenance to the other spouse.

Maintenance can be paid to either party to the marriage.

2. Up to what age can a child benefit from a maintenance allowance?

See the answer to question 1 above. No age limit is specified in Children Act 1989 Schedule 1.

 

TABLE OF CONTENTS

1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of England and Wales? 1.
2. Up to what age can a child benefit from a maintenance allowance? 2.
3. In which cases is the law of England and Wales applicable? 3.
4. If this law is not applicable, which law will the courts of England and Wales apply? 4.
If both the person who asks for maintenance and the debtor are in England and Wales: If both the person who asks for maintenance and the debtor are in England and Wales:
5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance? 5.
5.a) How do I apply for maintenance from this organisation or government department (central or local), and what procedures apply? 5.a)
6. Can a request be made on behalf of a relative, a close relation, or a child under age? 6.
7. If the applicant plans to bring the case to court, how does he/she knows which court has jurisdiction? 7.
8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.)? If not, which procedures? 8.
9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure? 9.
10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court's decision be revised to take account of the changes in the costs of living or family circumstances? 10.
11. How and to whom will the maintenance be paid? 11.
12. if the maintenance debtor doesn't pay voluntarily, what action can be taken in order to force him/her to pay? 12.
13. Is there an organisation or government department (central or local) which can help me to recover maintenance? 13.
14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place? 14.
If the petitioner is in England and Wales and the maintenance debtor has his/her residence in another country: If the petitioner is in England and Wales and the maintenance debtor has his/her residence in another country:
15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in England and Wales? 15.
16. if so, how can that organisation or government department (central or local) be contacted? 16.
17. What kind of assistance can the petitioner receive from this organisation or government department (central or local)? 17.
If the petitioner is in another country and the maintenance debtor is in England and Wales: If the petitioner is in another country and the maintenance debtor is in England and Wales:
18. Can the petitioner address directly a request to an organisation or government department (central or local) in England and Wales? 18.
19. if so, how can that organisation or government department (central or local) be contacted? 19.
20. What kind of assistance can the petitioner receive from this organisation or government department (central or local)? 20.
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3. In which cases is the law of England and Wales applicable?

The law of England and Wales applies to all cases decided in England and Wales.

The legislation covering child support maintenance is the Child Support Act 1991, as amended by the Child Support, Pensions and Social Security Act 2000.

The law on child support maintenance under the Child Support Act 1991 applies to the whole of the United Kingdom . The Child Support Agency has jurisdiction to make a maintenance calculation where the parent or person with care of the child, the non-resident parent and the child are all habitually resident in the United Kingdom . The Child Support Agency also has jurisdiction if the non-resident parent is not habitually resident in the United Kingdom , but works for an employer whose payroll is based in the United Kingdom .

4. If this law is not applicable, which law will the courts of England and Wales apply?

The courts of England and Wales will always apply the law of England and Wales. The following laws apply:

  • Children Act 1989 Schedule 1.The Act provides for financial relief for a child in the High Court, or County Court or Magistrates’ (Family Proceedings) Court. Application can be made for a child under 18 years.
  • Matrimonial Causes Act 1973 sections 23, 24A, 27 and 10(2). On granting a decree of divorce, nullity of marriage, or a judicial separation the court may make an order for periodical or lump sum payments for either party of the marriage and for periodical payments or lump sum payments to the applicant for the benefit of a child of the family or to the child of the family (section 23).
  • Domestic Proceedings and Magistrates’ Courts Act 1978 sections 2, 6 and 7.

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If both the person who asks for maintenance and the debtor are in England and Wales:

5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance?

For child support maintenance the applicant should apply to the Child Support Agency.

5.a) How do I apply for maintenance from this organisation or government department (central or local), and what procedures apply?

To apply for child support maintenance you can telephone the Child Support National Helpline on 08457 133 133 (for callers within the UK) or +44 151 227 2274 (for callers from outside UK). The lines are open from 0800 to 2000 Monday to Friday inclusive and from 0830 to 1700 on Saturday. An application for child support maintenance can be made over the telephone or you can request an application form. You must provide information about the children for whom maintenance is needed, existing maintenance arrangements and details of any arrangements for sharing the care of the child. The other parent will then be contacted and asked to provide the information needed by the Child Support Agency to make the maintenance calculation.

The making of a child support maintenance calculation, collection of maintenance, passing maintenance on to the parent or person with care of a child, and enforcement of the maintenance liability are provided free of charge by the Child Support Agency.

The following paragraphs explain who may be eligible to apply:

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Child support maintenance is paid by parents who live apart from their children via the Child Support Agency if the child is under 16, or is under 19 in full-time education which is not advanced education (at school or an equivalent educational establishment). It is paid to the parent or person with care. The parent or person with care of the child applies to the Child Support Agency. The amount is calculated by the Child Support Agency. The weekly payment is made by the non-resident parent. The non-resident parent can apply to pay maintenance.

A parent with care of a child who claims certain income related social security benefits (Income Support and income-based Jobseeker’s Allowance) is automatically treated as having applied for maintenance unless they opt out. If they do opt out their benefit may be reduced.

When the parent with care of a child is not claiming benefit, the Child Support Agency may not be able to accept an application if there are existing arrangements in place. These include certain court orders for periodical maintenance made before 3 March 2003, court orders made on or after that date that are less than a year old, or written maintenance agreements made before 5 April 1993.

Existing maintenance arrangements do not prevent a parent with care who is on social security benefits from receiving child support maintenance. When a maintenance calculation is made in these case, any existing arrangements are cancelled.

For cases under the Children Act 1989 Schedule 1 maintenance application is made to the court.

6. Can a request be made on behalf of a relative, a close relation, or a child under age?

For child support maintenance, anyone such as a friend, relative or a legal adviser (e.g. a solicitor in England and Wales) can make an application on behalf of a parent or person with care of a child. The parent or person with care will need to authorise the person making the application to do so, unless they already have authority, for example a power of attorney. In England and Wales an application cannot be made on behalf of a child as children cannot apply for child support maintenance in their own right.

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A request for reciprocal enforcement of maintenance can only be made on behalf of a child or in some cases on behalf of a divorced spouse.

7. If the applicant plans to bring the case to court, how does he/she knows which court has jurisdiction?

For applicants in England and Wales, applications can be made to either the local magistrates’ or county court. The addresses can be found in the telephone directory or the Court Service website. The administrative staff at the court will provide advice if a different court needs to be addressed.

8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.)? If not, which procedures?

Application for child support maintenance is an administrative process handled by the Child Support Agency.

Applicants for the reciprocal enforcement of a maintenance order are not required to have a lawyer to apply to the court for recovery of maintenance under the various international conventions and agreements. The application received from another country will be sent to the magistrates’ court of the area in which the respondent resides, or to the originating court by the relevant Central Authority for England and Wales.

Applicants under Children Act 1989 Schedule 1 are not required to have a lawyer to apply to the court.

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9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure?

For recovery of maintenance, legal representation is not usually required and fees are not required in the majority of cases unless an order was made in the county court. Where legal representation is required legal help and assistance is available, but is subject to a means and merits test in some cases; the applicant may be required to pay a contribution.

The making of a child support maintenance calculation, collection of maintenance, passing maintenance on to the parent or person with care of a child, and enforcement of the maintenance liability are provided free of charge by the Child Support Agency.

10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court's decision be revised to take account of the changes in the costs of living or family circumstances?

For the recovery of maintenance, the court can grant an order for child maintenance, spousal maintenance, or child/spousal maintenance. The court can make an order for periodical payments, lump sum, settlement payments, secured periodical payments. Account will be taken of all the circumstances of the individual case in assessing the amounts. Application can be made to the courts at any time to vary an order for maintenance.

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For child support maintenance, if the non-resident parent’s net weekly income is £200 or more, child support maintenance is calculated as a percentage of the non-resident parent’s net income. The percentages are 15% for one child, 20% for two and 25 % for three or more. If the non-resident parent’s net weekly income is more than £100 but less than £200, a reduced rate applies. If the non-resident parent’s net weekly income is £100 or less, or they are receiving social security benefits, a flat rate of £5 applies.

The amount of net weekly income used to calculate the amount of maintenance payable is reduced if the non-resident parent has children living with them in their current family.

The maintenance calculation can also be reduced if the non-resident parent has overnight care of the child for at least one night a week. (For example, 52 nights = one seventh reduction, 104 nights = two sevenths reduction.)

No account is taken of the parent with care’s income in assessing child support maintenance.

11. How and to whom will the maintenance be paid?

The people eligible to receive maintenance are set out at 1 above.

The courts in England and Wales deal with payments to individuals. However, the Reciprocal Enforcement of Maintenance Orders (REMO) section in the Department for Constitutional Affairs Office of the Official Solicitor & Public Trustee has a role in processing some payments from the United States of America.

The Child Support Agency provides a calculation service and a collection service. It will collect child support maintenance if the person with care is on Income Support or income-based Jobseeker’s Allowance, or if either parent asks it to do so. If non-resident parents are late with payments, the Child Support Agency will try to make sure that they pay all the child maintenance they owe.

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12. if the maintenance debtor doesn't pay voluntarily, what action can be taken in order to force him/her to pay?

For the recovery of maintenance, the court can order payment to be made directly to the court; the court can order a particular method of payment; the court can make an attachment of earnings order; the court can impose a period of imprisonment.

For child support maintenance, if a non-resident parent does not pay their child support liability, the Child Support Agency will take the necessary action to make sure that they pay all the child maintenance due. The Child Support Agency has a range of powers it can use. These include taking money direct from earnings (deduction from earnings order) and taking court action (enforcement action). If necessary in extreme cases, the court may be asked to take away the non-payer non-resident parent’s driving licence or even send them to prison.

If the non-resident parent fails to make payments at the correct time, the Child Support Agency may charge a penalty of up to 25% of the weekly maintenance. This may be charged for each week that the non-resident parent fails to pay or pays late. This money is not paid as maintenance to the parent or person with care, but is retained by the state as reimbursement of the additional administrative costs to the Agency of enforcing payments.

13. Is there an organisation or government department (central or local) which can help me to recover maintenance?

For child support maintenance, the relevant organisation is the Child Support Agency (see above).

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14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place?

For child support, the Child Support Agency can only pass on money it receives, where appropriate. The Agency is not able to pay the maintenance, or part of it, themselves or in place of the non-resident parent.

If the parent or person with care of a child receives Income Support (including Minimum Income Guarantee) or income-based Jobseeker’s Allowance, they will receive a provision of child support maintenance with their benefit payment. In these circumstances the parent or person with care will be paid up to £10 of any maintenance payment received from the non-resident parent. The rest will be retained by the state.

The United Kingdom’s Central Authorities (e.g. REMO) cannot take responsibility for making payments.

If the petitioner is in England and Wales and the maintenance debtor has his/her residence in another country:

15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in England and Wales?

You should apply to the Department for Constitutional Affairs Office of the Official Soliciter & Public Trustee Reciprocal Enforcement of Maintenance Orders (REMO) Section.

Reciprocal Enforcement of Maintenance Orders is the process by which maintenance orders made by United Kingdom courts on behalf of United Kingdom residents can be registered and enforced by courts or other authorities in other countries against people resident abroad.

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This is a two-way arrangement governed by international conventions, which means that foreign maintenance orders in favour of individuals abroad can likewise be registered and enforced by United Kingdom courts against United Kingdom residents.

How to apply -

A United Kingdom resident who wishes to apply to obtain maintenance from a person overseas should approach:

  • their local magistrates’ court (or county court where the order was made) if they have an existing court order for maintenance; or
  • their local magistrates’ court if there is no existing order.

The addresses of the courts can be found in the telephone directory or the Court Service website.

They may apply for their order to be enforced in the country where the payer resides. Procedures also exist to enable an applicant to ask the foreign authorities to create an order for maintenance on their behalf.

There is no need for the applicant to engage a solicitor. Court staff will help the applicant and will forward the application to the relevant authority: the Department for Constitutional Affairs for applications from England and Wales; the Scottish Executive for applications from Scotland; or the Northern Ireland Court Service for applications from Northern Ireland.

The authority will check that the application is in order and send it to the foreign authority or court for registration and enforcement against the person living there.

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Applications from abroad must be sent to the REMO section of the Department for Constitutional Affairs Office of the Official Solicitor & Public Trustee, which is the authority in England and Wales for transmitting and receiving applications for maintenance enforcement if the absent parent lives abroad. REMO will forward the application to a specified court with the jurisdiction to deal with the case.

For child support maintenance it is only possible for the Child Support Agency to make a maintenance calculation where the non-resident parent is in another part of the United Kingdom (that is, England, Wales or Scotland), or is working outside the United Kingdom for an employer whose payroll is based in the United Kingdom.

16. if so, how can that organisation or government department (central or local) be contacted?

The REMO section can be contacted at:

Reciprocal Enforcement of Maintenance Orders (REMO)

Official Solicitor & Public Trustee

81 Chancery Lane

London

SW2A 1DD

Telephone: 0845 345 5303 (from UK only)

+44 20 7911 7016 (international)

Fax: + 44 20 7911 7030

e-mail: remo@offsol.gsi.gov.uk

17. What kind of assistance can the petitioner receive from this organisation or government department (central or local)?

Generally, detailed legal advice to applicants or others is not provided: this is the responsibility of the courts. However, general procedural guidance can be given. The precise nature of reciprocity available between the United Kingdom and other jurisdictions depends on the convention or agreement to which the other country is a signatory and the REMO section of the Department for Constitutional Affairs Office of the Official Solicitor & Public Trustee can provide advice about how the various conventions may apply to a particular case.

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For child support maintenance, if the parent with care and the child are resident in the United Kingdom but the non-resident parent is not, the Child Support Agency has jurisdiction to make a maintenance calculation if the non-resident parent works for an employer whose payroll is based in the United Kingdom.

If the petitioner is in another country and the maintenance debtor is in England and Wales:

18. Can the petitioner address directly a request to an organisation or government department (central or local) in England and Wales?

See the answer to question 15 above. Application is made through a Central Authority or court in the foreign jurisdiction where the applicant resides.

For child support maintenance the Child Support Agency would only have jurisdiction to make a maintenance calculation if the petitioner and the child are resident elsewhere in the United Kingdom (that is, Scotland or Northern Ireland).

19. if so, how can that organisation or government department (central or local) be contacted?

The contact details for REMO are given in answer 16 above.

The contact details for the Child Support Agency are given in answer 5A above.

20. What kind of assistance can the petitioner receive from this organisation or government department (central or local)?

The assistance provided by REMO is described in the answer to question 17 above.

The circumstances when the Child Support Agency can and cannot accept an application are detailed in earlier answers.

Further information

« Maintenance claims - General information | United Kingdom - General information »

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Last update: 04-01-2007

 
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