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Maintenance claims - Scotland

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

In Scotland there are presently two systems for the determination of support: the Child Support Act 1991 has generally taken priority over the Family Law (Scotland) Act 1985 and has removed child support from the private law area and the jurisdiction of the courts to the public sphere.

However, the Child Support Act generally only applies where the person with care, non-resident parent and child are habitually resident in the UK. The Act does apply where the non-resident parent is working abroad for certain bodies, including the UK civil service or armed forces. Where the 1991 Act does not apply, then the older scheme contained in the Family Law (Scotland) Act 1985 will operate.

Under the Child Support Act 1991 only a "qualifying child" (one who has at least one non-resident parent) is eligible to benefit from a maintenance decision made by the Child Support Agency. A parent (or other qualifying person) with care of a child who wishes to seek maintenance for the child from the non-resident parent applies to the Child Support Officer.

Under the Family Law (Scotland) Act 1985 an obligation of aliment is owed by and only owed by:

  • A husband to his wife
  • A wife to her husband
  • A father or mother to his or her child

A person to a child (other than a child who is boarded out with him by a local or other public authority or voluntary organisation) who has been accepted by him as a child of his family.

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

Under the Child Support Act 1991 Act a child must be:

 

TABLE OF CONTENTS

1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of Scotland? 1.
2. Up to what age can a child benefit from a maintenance allowance? 2.
3. In which cases is the law of Scotland applicable ? 3.
4. If this law is not applicable, which law will the courts of Scotland apply ? 4.
If both the person who asks for maintenance and the debtor are in Scotland: If both the person who asks for maintenance and the debtor are in Scotland:
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 know 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 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 Scotland and the maintenance debtor has his/her residence in another country: If the petitioner is in Scotland 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 Scotland? 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 Scotland: If the petitioner is in another country and the maintenance debtor is in Scotland:
18. Can the petitioner address directly a request to an organisation or government department (central or local) in Scotland? 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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  • Under the age of 16 or
  • In full-time education which is not advanced education, and under the age of 19 or
  • Under 18 and available for either work or youth training while the parent is still claiming child support in respect of the child.

Under the Family Law (Scotland) Act 1985 , a child is generally defined as a person under 18, but may also include a person over the age of 18 but under 25 who is "reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation".

3. In which cases is the law of Scotland applicable ?

Generally speaking, if the courts in Scotland decide they have jurisdiction they will apply Scots law. The Child Support Agency will not apply foreign law.

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

If it is thought that a question is governed by a relevant foreign law which is different from Scots law then that law must be averred and proved. There may be unusual circumstances where foreign law is pleaded by parties in a case in relation to a particular incidental question. In these circumstances the Scottish court may take this into consideration.

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

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

As stated above in the answer to Question 1 there are currently two systems operating in Scotland.
Under the 1991 Act, decisions on maintenance are taken by the Child Support Agency, and are, therefore, administrative decisions.

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If the case falls under the 1985 Act then the applicant can raise proceedings in either the local Sheriff Court or the Court of Session.

If support is being claimed between spouses then generally the 1985 Act will be used. If the support is for a child who has a non-resident parent and all parties are in the UK, the 1991 Act will be used with some exceptions. These exceptions are found in Section 8 of the Act and include instances where the child is disabled, where the absent parent has an exceptionally high income etc.

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

An applicant should apply to the

Child Support Agency,
PO Box 55,
Brierley Hill,
West Midlands DY5 1YL,

Telephone:

08457 133 133 (for callers within the UK)

or +44 151 227 2274 (for callers from outside UK).

The Agency has information provided on their web-site.

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

See answer to question 1.

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

The court where either party is domiciled would be appropriate. For local sheriff courts in Scotland, see The Scottish Courts web-site. The court locations page has a gazetteer matching places in Scotland to the correct local court.

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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?

If the pursuer wishes to bring the case to court then it is advisable to secure the services of a solicitor experienced in family law.

Applications under the 1991 Act to the Child Support Agency are generally made directly.

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 ?

The applicant if using a solicitor would have to pay for their services. Costs will, of course, vary. The claimant could apply for advice and assistance or legal aid giving particulars of their resources, i.e. claimant's disposable income and disposable capital. The typical costs and expenses, involved in an application for child support or maintenance are:

  • Standard legal fees.
  • Any irrecoverable court costs.
  • Enforcement expenses.

If the 1991 Act is being used there are no fees involved.

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 changes in the costs of living or family circumstances?

Under the Family Law (Scotland) Act 1985, aliment is such support as is reasonable in the circumstances having regard to the needs and resources of the parties, their earning capacities and, generally, all the circumstances of the case. Both present and foreseeable needs and resources are to be taken into account, and a consideration of earning capacity clearly entitles the court to have regard not only to present earned income and opportunities in present employment but, more generally, to the potential income which it may be within a party's capacity to earn. The court is not to take account of any conduct of a party unless it would be manifestly inequitable to leave it out of account. Under the 1985 Act, maintenance payments in respect of children or spouses are not subject to any type of automatic reassessment. A decree granted in an action for aliment may, on an application by or on behalf of either party to the action, be varied or recalled by an order of the court if, since the date of the decree, there has been a material change of circumstances. The provisions of the 1985 Act apply to all applications and orders for variation or recall as they apply to actions for aliment and decrees in such actions. So the same factors have to be taken into account in quantifying aliment and the court has the same powers, including power to backdate a variation or recall to the date of the application or, on special cause shown, to an earlier date. The expression "a material change of circumstances" can cover a change in foreseen circumstances on the basis of which the original decree was granted. However, it will not cover the case where the court has simply made the original award on the basis of incomplete or incorrect information: in such cases there has not been a change of circumstances.

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Under the 1991 Act support is determined in accordance with set formulae which are simplified by the Child Support, Pensions and Social Security Act 2000, in force since April 2002.

Under the 1991 Act, there is provision for reviews on a periodical basis. These are to be conducted as if a fresh application for a maintenance assessment had been made. The regulations provide that an assessment must be reviewed after it has been in force for a period of 52 weeks (in the case of an assessment whose effective date is on or before April 18, 1994) or 104 weeks (where the effective date is after April 18, 1994).

Furthermore, there is also provision for review on the application of either party where there is a change of circumstances. This includes such matters as increases in wages or benefits; but for a reassessment to take place the change must normally satisfy one of several financial thresholds between £1 and £10. This is to avoid constant trivial revisions.

There may also be review at the instigation of the child support officer (CSO). This occurs where the CSO is satisfied that a maintenance assessment in force is defective because it has been made in ignorance of a material fact, is based on a mistake as to a material fact or is wrong in law: in these circumstances he or she may make a fresh assessment as if there had been an application by the affected party. In addition the CSO has power to make an assessment as if an application had been made for a review on grounds of change of circumstances or against refusal to make or review an assessment where satisfied that application for such a review would be appropriate.

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

Under the Family Law (Scotland) Act 1985, the payment and collection of child support and maintenance for a spouse when the payer pays on a voluntary basis is usually organised through bank transfers and cheque payments. If under the Child Support Act 1991, rather than leave collection in the hands of parents with care, part of the remit of the Child Support Agency has been to provide a cheap collection and enforcement service. The 1991 Act introduced a flat fee for those who opt to use their collection services which also applies where parents with care have no option as recipients of State benefits. This collection fee is payable by the non-resident parent.

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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 ?

If the payer fails to pay on a voluntary basis, under the 1985 Act the payee may use diligence procedures for enforcement of a maintenance order. The most common diligence procedures (term used in Scotland to describe enforcement of a civil court order) are regulated by the Debtors (Scotland) Act 1987. The diligence of attachment is regulated by the Debt Arrangement and Attachment (Scotland) Act 2002.

Section 19 of the Family Law (Scotland) Act 1985 provides that in an action for aliment the court has power, on cause shown, to grant warrant for inhibition (which freezes the power to enter into transactions over land or buildings) or warrant for arrestment (which freezes funds such as money in bank accounts) pending the outcome of the action and, if it thinks fit, to limit the inhibition or arrestment to any particular property or to funds not exceeding a specified value. Thus, funds belonging to the payer which are held by a third party, eg a bank or a building society, may be attached by an arrestment. An action of furthcoming would then be required to release the funds to the creditor, but this would need to be based on an enforceable authority for payment of a sum.

Once the maintenance creditor is in possession of an enforceable authority for payment of a sum, the maintenance debtor's goods may be attached by attachment and sale. However, some goods are exempt (eg clothing, tools of trade, basic domestic furniture, children's toys etc). If it is the intention to attach goods in the debtor's residence then a separate judicial procedure is required to authorise this.

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So far as current aliment under a court decree is concerned, provided that the debtor has been informed of the existence of the order more than 4 weeks before enforcement action is taken and at least 1 instalment is in arrears, then a current maintenance arrestment under sections 51-56 of the Debtors (Scotland) Act 1987 can be served. This requires the employer of the debtor to deduct a sum, determined in accordance with a statutory formula, from the debtor's earnings on each pay day and to pay the sum so deducted to the creditor. If the debtor changes jobs then a fresh arrestment would need to be served on the new employer.

Where the payer is unemployed and in receipt of Social Security or other welfare benefits, it is generally not possible to recover maintenance due from any part of those benefits.

Diligence is carried out by independent fee-paid officers of the court called Messengers-at-Arms and Sheriff Officers. These officers must be paid for their work whether or not enforcement action is successful. If the claimant is eligible for legal aid then these fees will be paid by the Scottish Legal Aid Board. However, the claimant will be liable for these fees if they are not receiving legal aid.

As a last resort, where the payer refuses to pay maintenance due under a court order, the payee may raise an action for civil imprisonment of the payer. This would only apply if the payer has the ability to pay but wilfully refuses to do so. It is not an enforcement procedure and is not automatically granted, the Sheriff has complete discretion.

The Child Support Agency (CSA), created by the 1991 Act, has a range of different alternatives to enforce decisions about the maintenance assessment. These include the possibility of a deduction from earnings order. In this case, the Secretary of State has a discretionary power to make such an order. This order may be made to secure the payment of arrears of child support maintenance, as well as future amounts, or a combination of both. A deduction from earnings order must be directed at the employer of the liable person and has effect from the date specified in the order.

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Where a liable person fails to make one or more payments and it appears to the CSA that it is inappropriate to make a deduction from earnings order against him or, although such an order has been made, it proves ineffective as a means of securing that payments are made in accordance with the maintenance assessment, then the CSA may apply to the Sheriff for a liability order against the liable person. This order authorises attachment and sale, arrestment and inhibition.

Finally, where a liability order has been made the CSA is regarded as the creditor for the purposes of section 4 of the Civil Imprisonment (Scotland) Act 1882, and can seek imprisonment for failure to obey decree for an alimentary debt. Disqualification from driving exists as an alternative deterrent to imprisonment and may be imposed by the court.

To sum up, the methods available in Scotland for the enforcement of child support decisions and maintenance decisions in respect of a spouse are as follows:

  • Arrestment of earnings
  • Arrestment of funds from bank accounts or other sources
  • Inhibition over land and buildings
  • Attachment and sale of corporeal moveable goods
  • Disqualification from driving (1991 Act only)
  • Committal to prison.

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

The Law Society of Scotland, telephone: 00 44 131 226 7411 can provide individuals with the names of solicitors who can provide advice and assistance in child support/maintenance cases. The Child Support Agency can be contacted on 08457 133 133 (for callers within the UK) or +44 151 227 2274 (for callers from outside UK) or a local Citizens Advice Bureau may be able to provide you with information. See Citizens Advice Scotland for details.

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

No, this does not generally happen in Scotland.

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If the petitioner is in Scotland 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 Scotland?

The petitioner can contact the Scottish Executive Justice Department who acts as the Central Authority under various reciprocal international arrangements concerning maintenance.

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

The Central Authority can be contacted by writing to:

The Scottish Executive,
Civil Justice and International Division,
St Andrew's House,
Regent Road,
Edinburgh, EH1 3DG.
Tel: 00 44 131 244 2417/4827
Fax: 00 44 131 244 4848 or
by email:

alan.finlayson@scotland.gsi.gov.uk or
martin.mcpheely@scotland.gsi.gov.uk

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

The petitioner can receive general guidance but not legal advice from the Central Authority. The Central Authority can provide individuals with information booklets and generally advise on the workings of maintenance agreements and arrangements with particular countries. On receipt of an application, the Central Authority will arrange for it to be translated and send abroad for action. The Central Authority will continue to monitor the application with the Central Authority abroad.

If the petitioner is in another country and the maintenance debtor is in Scotland:

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

A pursuer in another country should generally first contact their country's designated central authority to determine whether or not a reciprocal arrangement currently exists. If there is no arrangement in place then the only alternative would be for the pursuer to raise an action in Scotland. In these circumstances the pursuer should contact the Law Society of Scotland, tel: 00 44 131 226 7411 who can provide individuals with the names of solicitors who can provide advice and assistance in child support/maintenance cases.

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

See answer to Question 18.

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

If there is a reciprocal arrangement in place then, once an application has been sent to Scotland, the Scottish Central Authority acts as a point of contact for the pursuer, solicitors and foreign authorities. The Central Authority for Scotland will also arrange for a court order to be registered and for a solicitor to be appointed on behalf of the pursuer subject to legal aid requirements.

Further information

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

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Last update: 03-11-2009

 
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