Divorce and children: more questions answered
February 28, 2014 1 comment
Do maintenance payments drop if I move in with a new partner who has children?
Yes, under the new child maintenance scheme the parent who pays child maintenance should be awarded a percentage reduction in respect of any other supported children in the household. The percentage depends on how many other supported children in the household there are. If there is one other supported child there is a percentage reduction of 11% to the amount assessed as payable, if there are two the percentage reduction is 14% and if there are three or more the percentage reduction applied is 16%.
What can I do about an absent father living abroad who is not paying for his children?
This is a difficult situation to resolve as the CSA (Child Support Agency)/CMS (Child Maintenance Service) does not have jurisdiction. If there is a Court order in place obtained through the English Courts then depending on where the father is living enforcement proceedings might be available if there are reciprocal enforcement proceedings arrangements between this country and the father’s country of residence. If there is no order in place then you can try to negotiate directly with the father to explore whether or not you can issue legal proceedings or use a similar agency to the CSA/CMS in this country in the father’s country of residence.
Can Claire’s Law be used if your ex wants contact with his children?
Claire’s Law enables people to check the Police records of their partners to screen for any history of domestic violence.
It was named after Claire Wood who was tragically murdered by her ex-boyfriend at her home in Salford in February 2009. She was unaware of his history of violence against women.
The scheme allows Police to disclose to individuals details of their partner’s abusive pasts and following a 14 month pilot in four Police areas the scheme is being extended to Police forces throughout England and Wales from March 2014. Every request for this information is thoroughly checked by a dedicated panel to ensure information is provided only when it is lawful, proportionate and necessary.
I doubt that you can use this law if you are wishing to stop your ex having contact with the children. If his violence either to you or the children in question is or has been an issue then this may enable you to prevent him having contact with the children. Authorities may also try to ensure that any risk is eradicated by the contact being supervised or by the imposition of other conditions.
Can I change my children’s names if I am fleeing domestic violence?
Not necessarily. Changing children’s names is a thorny issue. Generally speaking you would need the other parent to consent in writing or the Court’s permission. The Court would make the decision on the basis of what it believes is in the children’s best interests. Any history of domestic violence and your need to ensure your own safety and that of the children would be a factor that the Court would take into consideration as part of its deliberations as to whether or not it would be in the best interests of the children that their names be changed. There are of course a raft of other measures that can be taken to protect you from domestic violence, either through the Police or through the Courts. There are many domestic violence support and counselling services out there to offer assistance apart from the criminal and legal remedies available to you. Changing the children’s surnames may not be the appropriate first course of action but if you do wish to change their names proper legal advice is essential.
Can I put half my mortgage in my children’s names?
In a word, no. The mortgage provider, usually a bank or a building society, is unlikely to agree to this as children under 18 have no legal capacity and of course are unlikely to have an income to satisfy the mortgage lender that they can make the repayments under the obligations and terms of the mortgage. It is however possible to place a property in trust for children and specialist legal advice from a property lawyer/trust lawyer would need to be obtained.
Can I take my children abroad to live? My ex-partner does not have parental responsibility or contact.
If you have a residence order in place then you can take any child who is the subject of that order out of the country for a period of up to one month without the permission of the other parent or the Court. This is however different to wanting to take the children abroad and out of the Court’s jurisdiction to live there permanently. You should try and obtain the written consent of the other parent even though he does not have parental responsibility or contact provided of course you can contact him. If you cannot contact him or he will not consent then you should make an application for a ‘specific issue order’under the Children Act 1989. The Court will consider the welfare of the children and the decision will be made on the basis of what is in their best interests and not necessarily in accordance with your wishes or the other parent’s wishes. Your ex-partner could himself make an application to the Court for a ‘prohibited steps order’ to prevent you removing the children from the Court’s jurisdiction.
In either case the Court will have to consider the Welfare Checklist under the Children Act 1989 which consists of the following:-
(a) The ascertainable wishes and feelings with the child concerned, considered in the light of his age and understanding;
(b) His physical, emotional and educational needs;
(c) The likely effect on him of any change in his circumstances;
(d) His age, sex, background and any characteristics of his which the Court considers relevant’
(e) Any harm which he has suffered or which he is at risk of suffering;
(f) How capable each parent (or other relevant person) is of meeting his needs.
Your reasons for wanting to move abroad are likely to be very relevant and the more preparation you have done the better your chance of succeeding. If you can demonstrate that you have employment and financial independence, the children’s education is catered for as well as their housing needs and they have good medical care arrangements and a support system out there, perhaps with family or friends, then the better your prospects of success.
Can my ex-partner make me sell the house if we have children under 16?
Generally speaking it would be difficult for your ex-partner to make you sell the house if you are residing there with children under 16. Unless the house is far too big for you and the children or it can be demonstrated that you can purchase your ex-partner’s interest in the property (assuming he has a legitimate interest in the property) then he will probably have to wait until the youngest child has reached 17/18 or ceases full time education or training before he can expect you to sell the house or you to purchase his interest. You are also likely to have rights under Schedule 1 of the Children Act 1989 in respect of the property. You should seek legal advice from a family lawyer to obtain more information about these rights.
Do children who are now adults have to be included in a divorce petition?
Yes. All children of the marriage whether borne to both you and your husband, or either of you or adopted by you and any other children treated by both of you as children of the family need to be included in the divorce petition. Their names, gender and dates of birth must be included if they are under 16 or between 16 and 18 but still undergoing education or training or working full time. If they are over 18 then it is sufficient to simply state that they are over 18. You will also need to complete a statement of arrangements for any such child, giving more information about them and where they are living if they are under 16 or between 16 and 18 and at school, college or in training for a trade, profession or vocation. The statement of arrangements does not need to be completed if there are no children of the family or the children are either over 16 or aged under 18 and not at school, college, or in training for a trade, professional or vocation, or if over 18.
Mark Christie is the head of Stowe Family Law’s dedicated Children’s Department. A long-standing member of Resolution, he is also a member of the Law Society’s Family Law Panel, which means his expertise in family law has been rigorously and independently assessed and accredited. Mark has specialised in family law for more than 30 years and provides clients with a wealth of practical experience.
Photo by Stephan Hochhaus via Flickr under a Creative Commons licence