Occasionally I am pleased to publish a guest post from contributors other than myself and my colleagues at Stowe Family Law, if I think it will be of real interest to readers generally. Given the concerns of many in relation to Child Support I am delighted to publish a guest post by Anna

They are campaigning against the Government’s proposed introduction of charges to use the Child Support Agency (CSA). A cause that has received some powerful support from the former Lord Chancellor Lord Mackay of Clashfern in the House of Lords, and which is also reported in The Times today.

I particularly hope the email advice package to which Anna refers will prove useful to readers.

Child maintenance is an essential form of support for many single parent families. However, making arrangements to ensure it gets paid can be complicated, confusing and sometimes distressing for all involved.

There are different ways to set up an arrangement for child maintenance – from making private arrangements, to using the CSA – and the emphasis is on the parents involved to choose the one that best suits their circumstances.

Easier said than done, for many. Especially if you’ve heard a lot about child maintenance, but are suddenly thrust into the position of actually having to arrange for it to be paid – sometimes with an ex-partner with little or no interest in helping this happen.

With this in mind, and the fact that the government is talking of overhauling the way child maintenance is currently managed through the Child Support Agency to include charges to allow parents to access it, it pays – quite literally – to have all the facts.

At Gingerbread, the national charity for single parent families, we regularly receive calls to our helpline (0808 802 0925), and questions in our online forums, from single parents who are trying to make sense of how they should approach making arrangements for child maintenance.

Some want to know how much their child’s other parent would be expected to pay. Others have had a private arrangement breakdown and are investigating alternative options. Many are struggling to navigate their way through the CSA.

The common thread we hear is that single parent families aren’t always clear on how to get to child maintenance – money to which their children are entitled and which many families, as one single mum told us: “completely rely on to stay afloat”.

In order to help single parents find the information they need to make informed decisions about child maintenance, Gingerbread has launched an email advice pack bringing together expert advice on key areas of the child maintenance process from our extensive collection of factsheets.

The email advice pack includes information about:

• Getting the right amount of child maintenance
• Coming to agreements with an ex-partner
• Enforcing payments
• Using the Child Support Agency.

Single parents can get the pack sent straight to their inbox by heading to www.gingerbread.org.uk/emailadvice.aspx and entering their email address.

Gingerbread’s campaign against CSA charges

Gingerbread is campaigning against government proposals to charge single parents an upfront application fee (around £50-100) to use the CSA to claim child maintenance, and an ongoing ‘collection charge’ of up to 12% per payment and an ongoing ‘collection charge’ of between 7 and 12% on any maintenance paid to the parent with care, as well as an extra 15-20% charge added to the non-resident parent’s payment.

We think the charges are deeply unfair, and in the end it’s the families that will suffer. And we’re not alone. Senior Tory Peer Lord Mackay of Clashfern, who introduced the Child Support Act in 1991 under Margaret Thatcher, is also in opposition to the charges and has tabled an amendment that would exempt parents who have no option but to use the CSA to receive money for the care of their children from charges.

In an interview with The Times published today, Lord Mackay described the charges as “utterly unfair” and placing multiple “hurdles” in the way of parents who need support.

Commenting in the article, our Chief Executive Fiona Weir said: “the indications of support Lord Mackay has received so far show the high level of cross-party concern at the government’s proposals.

“We fully support efforts to help separated parents work together to deal with the financial, emotional and practical consequences of separation. But the government needs to realise that in very many cases that isn’t possible, and if charges are introduced then it will be children who lose out.”

In the recent High Court case of FG v MBW ([2011] EWHC 1729 (Fam) child maintenance payments were ordered to be made out of a non-resident father’s capital.

So does this then set a precedent for similar orders where an absent parent fails to pay a fair level of child maintenance from his or her income? Or is the ruling highly specific to the details of this case?

The circumstances of this case are particularly complex and worth considering in some detail.

Top-up maintenance

The relationship between mother and father had lasted 4 years and they had a child in 2002, named Luc, but remained unmarried. They separated shortly after Luc’s birth and the father then had a further son after marrying and then later divorcing. At the time of this judgment he resided with a new partner and had fathered a third child.

He made maintenance payments to Luc in accordance with an order made under Schedule 1 of the Children Act 1989. Maintenance payments had not been subject to a Child Support Agency (CSA) assessment because the father earned in excess of the £2,000 per week maximum level of CSA assessable income.  Therefore the case concerned a higher“top-up” maintenance payment, based on the lifestyle the mother had enjoyed during their relationship and their future expectations for Luc as they had been at that time.

Under an order made in 2005, the father paid £1,886 in child maintenance each month. This was based upon the couple’s salaries, which amounted to £130,000 per year in total. They had a comfortable lifestyle and were paying for Luc to be privately educated.

During the father’s divorce proceedings, Luc’s mother learnt that shares in one of the companies he had owned appeared to still belong to him, whereasduring the 2005 maintenance proceedings he had alleged these were in his wife’s name.

The mother obtained disclosure of the husband’s financial position as he had been presenting it during divorce proceedings.   It was shown that he hadclaimed that the shares belonged to him and had been put into his wife’s name to “ensure they were protected from a litigious ex-girlfriend”.

Giving evidence during the 2011 proceedings, the father claimed that he had only made that statement because he wanted the shares to be included in the pot of family assets for the purposes of the divorce.

The father’s earnings had also increased consistently over the years since the original maintenance order, which had been based on a projected future salary of £150,000. In addition, it was thought that he could expect significant capital growth in the future. He failed to disclose these facts to the mother and, although he had made some small voluntary increases in child maintenance, these were not proportional to his increase in income and capital.

The mother had been unemployed for some time after sustaining injuries in a car accident. She was in receipt of state benefits and her long-term prognosis and capacity to work were uncertain.

A decision born of uncertainty

There are two distinct features of this case:

• It is a “top-up” case in which maintenance is to be higher than the level at which the CSA administrates;
• Non-disclosure was alleged by the mother and the application was for an upward variation of maintenance payments. It was not a case of non-payment, but of under payment.

It is only in top-up cases,or where an agreement has been reached between the parents as to child maintenance arrangements,that the court has the jurisdiction to make a maintenance order under Schedule 1 of the Children Act 1989.  However where an agreement is reached, a party may apply to the CSA for an assessment after 12 months have passed.  This may result in the sum of the original child maintenance agreement, which may have been relatively generous, being reduced and maintenance arrangements falling outside of the jurisdiction of the court.

It may be possible for a “Christmas” order to be agreed between parties,which would have the effect of ensuring that the maintenance agreement was never more than 12 months old and therefore could not be subject to CSA assessment.

It is likely that where relations between parties are acrimonious, no agreement will be reached. Where there is no substantial wealth on the part of the absent parent and no agreement, the CSA will have the jurisdiction to deal with the matter. Unfortunately this excludes the vast majority of cases from the court’s jurisdiction.

In delivering his judgment in this case Mr Justice Charles found that there had been inconsistences in the father’s account of his ownership of the company shares.  The father’s financial position was described as being “in a state of transition” and his future income therefore uncertain.  His current disclosed income indicated that he would have to meet maintenance payments by using his capital reserves.

So why were payments ordered out of the father’s available capital of £130,000? This was largely due to the uncertainty of the financial positions of both parties and the fact that there would only be clarity as to their positions in the long-term. In the meantime, even though an increased maintenance order would mean the father eating into his capital, this was considered preferable to reducingpayments to Luc: the interests of the child were paramount.   In this instance the issue of maintenance will be subject to future review in light of any future capital gains or increase in income.

Balance of fairness

I believe that the most crucial point to emerge from this judgment is the alteration of the balance of fairness between the parents. The balance had previously been tipped in favour of the father, insofar as he was able to conceal income and assets and the onus was on the mother to uncover any facts that would entitle her to a higher level of maintenance for their son.

As a result of this decision, the balance of fairness seems to have been equalised, as in order for the father to make any application for a reduction in maintenance payments he must provide financial details showing that he cannot afford the current payments  He therefore must disclose information for his own benefit.

The advantage gained by the mother is that she is at the very least able to maintain the higher level of payment awarded in the case. Combined with the order made by the judge for further, regular disclosure in the future by the husband, her son is in a much more certain and strong position as to his future financial wellbeing.

But is this an example of maintenance payment enforcement in the long-term, or an example of a short-term arrangement designed to secure payment just for the time being?

It is clearly not intended that the father carry on making payments out of his capital. However, now that the balance of fairness has been adjusted between the parties the likelihood of being able to enforce maintenance at an appropriate level in the future does seem to be stronger.

The court expecting an absent parent to pay maintenance from capital reserves could be a crucial development. But the circumstances of this case are very particular. It will prove difficult to extend this principle to CSA-assessed cases where the court does not have jurisdiction.So only time will tell as to whether this ruling sets a precedent, or is merely an inventive solution to individual circumstances.

 Lindsey Randall studied at Trinity College, University of Cambridge, for an MA in English before deciding to pursue a career in law. She attended The College of Law in York before going on to study for the Bar at BPP Law School in Leeds. She is a barrister member of the Middle Temple, having been called to the Bar in 2010.Following a brief career in Banking Litigation Lindsey has decided to pursue a career in family law. She has now joined Stowe Family Law LLP .

For example, what if parents reach a private agreement for child maintenance in the context of an overall financial settlement, which is likely better than that which the CSA would award to the receiving parent? Recently a client of mine was startled to discover that even though a generous private agreement had been proposed by the other party, it would be invalidated after 12 months if that party decided to apply to the CSA in a bid to reduce child maintenance payments.

If you have children and are going through divorce or considering it, I recommend that you acquaint yourself with the following rules:

1.            When a court order has been made before 5 April 1993: the court retains jurisdiction. The CSA will only have jurisdiction if the parent with care claims income support.

2.            When a court order has been made between 5 April 1993 and 6 April 2002: the court retains jurisdiction unless the parent with care claims income support, or the court discharges the order.

3.            When a court order has been made after 6 April 2002: the court has jurisdiction for agreements reached between the parties. Once the order has been in place for more than 12 months, however, either party can apply to the CSA after giving two months’ notice to the other party. The CSA will then take over and assess child maintenance. The parts of the court order relating to child maintenance “fall away” and will never be reinstated, even if those parts of the court order had provided for child maintenance beyond the CSA statutory provision.

4.            When there is no court order: in those circumstances, there would be no Court jurisdiction unless the parties agree or the CSA does not have jurisdiction, for example step parents. The CSA has jurisdiction.

As an example of the third and largest category, let’s take a couple who, upon divorce, settle their financial arrangements. The parent with care secures capital, pension, income or agrees to a clean break on favourable child maintenance terms (in excess of the CSA formula, perhaps, or ignoring any overnight staying contact for the purposes of deduction of child maintenance). All is well.

Twelve months later, the parent who pays child maintenance applies to the CSA to undertake an assessment. To the horror of the parent with care, the child maintenance payments are reduced. All the good intentions and the work done to achieve the global settlement are completely undone.

Can the parent with care do anything to prevent this from happening?

Any agreement that seeks to exclude a parent’s rights to apply to the CSA is void. However, as my client was delighted to discover, there is an often overlooked way for those looking to create an arrangement to minimise the impact of the CSA…

A solution in contract

The parties can “protect” themselves from the CSA if they set up payments by means of a contractual agreement. To put such an arrangement in place will usually require all of the following:

1.            A recital in the preamble of the order setting out the party’s intention

2.            Provision for child maintenance in the order itself

3.            A separate child maintenance agreement (“the contract”) setting out the obligation to pay.

The contract is designed to create a “compensatory debt”, to equal any advantage secured by either party on application to the CSA.

The contract can also be used to provide for a minimum child maintenance payment (for example if a substantial lump sum has been paid instead, or in situations where one party is concerned that the work or income of the payer is likely to be reduced or purposely depressed).

It’s flexible

With a contractual agreement, parties can reach child maintenance agreements, safe in the knowledge that they have contractual claims against their former spouse if the CSA becomes involved and assessment of maintenance falls below the original agreement.

It’s enforceable

If necessary, the same remedies are available as for breach of contract, including damages, judgment summons and potentially even bankruptcy.

In one case in which I was recently involved, we went one better. We secured provision in the order so that if the payer defaults, the final order can then be set aside in full, thereby reopening the receiving party’s matrimonial claims in their entirety.

If you are struggling with the conflicting and often contradictory jurisdictions of the court and the Child Support Agency, and you want to make provision to minimise the impact and uncertainty of the CSA, I suggest that you consider a contractual solution. It won’t work for everyone – but it may work for you.

James Thornton is a lawyer mediator at Stowe Family Law Settlements and a partner at Stowe Family Law’s Harrogate office. With 15 years’ experience, James’ specialisms include dealing with the financial issues arising from divorce, particularly when substantial personal, business or pension assets are involved. His expertise also extends to cases involving children. A former member of the Law Society’s Family Panel, James is an Accredited Specialist member of lawyers’ organisation Resolution, sits on the North and West Yorkshire Resolution committee and is a member of the West Yorkshire Family Justice Council.

Reader JamesB had some interesting questions for Stowe Family Law solicitor Rachel Baul about the CSA and changing the amount of child maintenance that he pays every month by an attachment to earnings order. (This is when child maintenance is deducted directly from the parent’s wages.) Every month many hundreds of visitors with questions about the CSA, CMEC and child maintenance find their way to this blog and for this reason, I am printing both the questions and Rachel’s answers in full.

JamesB: “I pay maintenance by an attachment to earnings order, by county court enforcement of an ancillary relief child maintenance order. The problem is that this is now over the rate of that which my ex-wife should receive. This is because I have since had another child and I am not earning more money now then I was when we divorced. Thus, I would like to go to the CSA and have the form completed and ready to go.”

Rachel Baul: So, you currently have an order providing for child maintenance as a result of your ancillary relief proceedings. You also have an attachment of earnings order against you for payments to be made through your employers. You have since had another child and you believe that under the current regime, you may pay less if you paid through the CSA. Therefore you wish to make an application to the CSA for an assessment.

The first thing you should note is that in order for you to apply to the CSA, at least 12 months and one day must have passed since the date of the court order. The CSA will not have jurisdiction to take on your case unless this time period has elapsed. If this time has not elapsed and you still wish for your child maintenance to be varied, you will need to make a variation application to the court that made the final ancillary relief order.

“Thing is, once I send [the form to the CSA], until they presumably dispose of the court order for me to pay through the CSA, I will be effectively paying twice won’t I? How can I stop this from happening please? What is the process? I have read that CSA maintenance is due from the date of the application and don’t want to pay child maintenance twice for the same period.”

There is a way around this. If your court order has been in place for at least 12 months and one day and the CSA has jurisdiction, then the attachment of earnings order will need to be discharged before the CSA can open the case.

You can still make your application to the CSA but, to ensure that you do not get charged twice, you will not start payments with the CSA until your other court order is discharged. Of course, when make your application to the CSA, you need to inform them of the whole situation so that they do not accidentally charge you.

To discharge the attachment of earnings order, you will need to make an application to the court informing them that you have made an application to the CSA. It will then be for the court to discharge your obligation under the child maintenance provision of your ancillary relief order, and to then discharge your attachment of earnings order. These orders will remain in force until they are discharged by the court. Therefore you will have to continue the payments until this time. Once the orders are discharged, the CSA can take over.

“On the form they ask for full details of my employer. Will they write straight away to my employer? I was under the impression that they wanted salary slips from me, but they have not asked for them. Should I miss off my employer’s name to get them to write to me and ask me for payslips (as I’d rather not involve my employer for obvious reasons – I don’t want to be seen as a troublemaker)? Or will they write to me first and not the employer? If that is the case, why do they ask for the details?”

The CSA is requesting information about your employer, because they need to know this in order to make their assessment of your child maintenance liability. They need to know whether you are in employment and how much you are paid. They will also use this information for enforcement purposes if you default in making the payments. The CSA can make a deduction of earnings order against you if you do not pay. This would work in the same way as your current attachment of earnings order. Their other enforcement powers include deducting money from your bank accounts, being disqualified from driving and committal to prison.

I hope that these answers satisfy your questions. Readers are welcome to leave additional questions below.

Solicitor Rachel Baul joined Stowe Family Law in 2004, and is a member of the Law Society’s Family Law Panel. She specialises in all areas of family law and ancillary relief, and has been commended by a number of the firm’s high profile clients.

When I explored the facts before me, however, I was soon engulfed in the CSA’s labyrinthine complexities.

According to the CSA’s Quarterly Statistics, more than 6,200 non-resident parents are living abroad but only a quarter of these are paying child maintenance through the CSA. The CSA is unable to enforce maintenance abroad, but this does not mean that the assessed maintenance is written off. Instead, a debt accrues at the CSA in each case. No wonder the CSA has a resource problem – combined, these debts could be in the millions!

Legislation introduced in 1991 meant that on the face of it, a move abroad and habitual residence there was the ideal way for a non-resident parent to evade financial responsibility for a child. This changed in 2000, when the rules were amended to allow for certain circumstances when the CSA would still have jurisdiction to enforce maintenance. These circumstances include:

• When the non-resident parent works for a UK based company abroad.
• When the non-resident parent is a civil servant or works within Her Majesty’s Diplomatic Service or Her Majesty’s Overseas Civil Service.
• When the non-resident parent is a member of the armed forces.
• When the non-resident parent works abroad on a secondment for a prescribed body such as a NHS trust or a local authority.

Additionally, the vagueness of the term “habitual residence” can give rise to grey areas. The CSA does not define habitual residence; nor is there any case law that deals with this definition in the context of the CSA.

In general terms, “habitual residence” would suggest that you are resident in the country in which you are living. However if the non-resident parent’s sole motivation for a move abroad is work commitments, and they intend to come back to the UK, then the CSA could view their habitual residence as being in the UK. This is especially true if there is already a home and family in the UK, or if the parent spends more than 92 days a year in the UK and is registered as resident for tax purposes.

So when doubt hangs over a parent’s “habitual residence”, that parent may face a bill for ongoing maintenance and arrears accrued during time spent abroad. If this bill is left unpaid, it can be enforced by the CSA through the courts, using a Deduction of Earnings Order. This would mean that the CSA could take a sum out of the parent’s earnings each month, at source. Alternatively the non-resident parent could contact the CSA and try to come to some agreement over how much they can pay and when.

There are other processes whereby maintenance can be enforced upon a parent living abroad. The Reciprocal Enforcement of Maintenance Orders (REMO) allows orders made for maintenance in a UK court on behalf of a UK resident to be enforced by either the courts or authorities of the foreign country in which the non-resident parent is living. A list of countries that are party to this process can be found on the CSA website.

In order to begin this process, the parent with care of the children should either apply to the magistrates’ court to register an already existing order abroad, or apply to the magistrates’ court to make an order for maintenance to be registered abroad. The order then effectively becomes an order of that foreign country and is, therefore, governed by the law of that country.

If arrears of maintenance accrue through the courts and are backdated by more than 12 months you must obtain leave of the court before you are able to reclaim these.  By contrast the CSA has no cut off date for arrears and are entitled to enforce arrears which are more than 12 months old. A CSA assessment will not accrue arrears if it is suspended by the parties, but will otherwise continue to accumulate.

Ultimately, it should be remembered that child maintenance is money that is owed to the child, not the other parent. Child maintenance is the responsibility of the non-resident parent and therefore it should be paid.

If the non-resident parent believes that their assessment is wrong or they cannot afford to pay then there may be some virtue in asking for a review or an appeal of their assessment. However this must be done within one month of receipt of the letter detailing the assessed amount that they are liable to pay.

So it seems that non-resident parents who think moving abroad will help them elude the CSA may have to think again. Parents who move abroad for legitimate reasons also need to consider whether they remain subject to the CSA’s assessments – and prepare accordingly.

Rachel Baul joined Stowe Family Law in 2004, and is a member of the Law Society’s Family Law Panel. She specialises in all areas of family law and ancillary relief, and has been commended by a number of the firm’s high profile clients.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.

Child and sea image credit: Pingu1963.

I have noticed that many new visitors arrive at this blog after entering questions about their predicaments into Google. I asked Cheshire divorce lawyer Robin Charrot if he could help out with some answers.

For most court hearings, you will not play a speaking role. However there are still a few rules to follow. Use common sense: don’t lose your temper, don’t glare at your spouse and don’t sigh, tut or mutter when your spouse’s lawyer is speaking. Pay attention to what is being said. To get your lawyer’s attention, write a short note and tap them on the shoulder. But please don’t do this every five minutes! For further tips see Marilyn Stowe’s post, How To Act In Court.

how to explain to children adultery divorce

However much you blame your spouse for having an affair, resist telling your children “the simple truth”. This will always do more harm than good, because it will give them hopelessly conflicted loyalties. Your children have the right to have the best possible relationship with both their parents. Tell the children that their mum and dad are going to be happier living in different homes. Avoid the emphasis on your spouse’s new partner. In turn, your spouse should not bring his or her new partner onto the scene until the children are used to their parents living apart. Even then it should be done gradually.

how do i get my wife of 20+ years sexually attracted to me again

Not the usual kind of question asked of a family lawyer! One of the most important things is that you have to show that you are sexually attracted to her.

how can you tell if your husband is cheating on you

Having an affair usually means spending more money; have his patterns of cash withdrawal or credit card spending changed? Other tell-tale signs are described in Marilyn Stowe’s post, Ten Ways To Tell He’s Cheating On You.

how do i obtain a mesher order against my husband

By reaching an agreement with your husband, which is then translated into the wording of a court order and approved by the court. If you cannot reach agreement, a court order may be imposed on both of you after a final hearing. Often a Mesher order is agreed upon when the wife cannot afford to “buy out” the husband’s interest in the property.

how does csa calculate self employed net income

Your net income is the profit from your activities after tax, National Insurance and pension contributions. If your net income is more than £2,000 per week, it is capped at that amount for the purpose of the maintenance calculation. However it is still possible that the resident parent could apply to the court for more maintenance or other financial orders against you.

how does the judge in a divorce case present his decision

It depends. If the case is fairly simple, and there is enough time left on the day of the hearing, the judge will tell you what his decision is there and then. In doing so, the judge must summarise the arguments and explain why they have reached their decision, so it takes a little time. If the case is complex or it is late in the day, the judge might “reserve” judgment, which often means that you have to wait several weeks. Then the decision will be issued in writing, or the parties will have to return to court to hear the judge pronounce his judgment.

how to change wife’s mind about divorce

You may not be able to! The most important thing is to keep communicating in a civil and constructive way. An independent third party can help you to do this: visit Relate for further information.

how to deal with anxiety and divorce hearing

Look after yourself: Don’t smoke, keep alcohol to a minimum and get as much sleep as possible. Ask lots of questions of your solicitor: what is the format of the hearing? Will I need to speak? Who will be representing me? What will be decided? When will it start and finish? Where should we meet? What do I wear? Feel free to bring a friend or family member with you for support, but note that they will not be allowed into the courtroom. If the hearing is likely to last all day, force yourself to have lunch!

how to know if marriage is invalid?

A marriage may be invalid if the ceremony did not comply with the formalities to make it legally recognised in the country in which the ceremony took place. For example, you may be in trouble if the venue is not licensed to hold marriages, or if the person conducting the ceremony is not licensed to do so. The most common problem is when couples go through a religious ceremony that is not recognised as a legally binding marriage in that country, and omit to follow it up with a civil ceremony.

ex partner lives with his mother how does that affect csa

It doesn’t.

how to withdraw from a sears tooth agreement

In short, you can’t. If you have signed up to a Sears Tooth Agreement, you have entered into an agreement with your solicitor to pay your legal fees from any money awarded to you at the end of your case. Your solicitor has carried out the work for you on that basis. The only way to “withdraw” is to settle the solicitor’s outstanding charges. If clients could withdraw from a Sears Tooth Agreement, then solicitors wouldn’t offer them!

how to write your own prenuptial agreements

Don’t bother. The current law on prenuptial agreements is that if the agreement is to hold water in any subsequent divorce proceedings, both parties must have had independent legal advice when it was entered into.

how you know he wants a trophy girlfriend

Ask yourself a few questions. Does he set great store by what his friends and associates think of him? Do some of them have trophy girlfriends? Has he said that he is not happy with his life? Has he started to spend more on clothes? Does he want a flashier car than he already has? If you are answering “Yes, Yes, YES!”, then watch out.

how to tell your wife you want a divorce younger women

This news is going to hurt big time – however you phrase it. However there is no point in lying or dressing your reasons up with excuses, because your wife will learn the truth soon enough. If you haven’t been honest, her reaction will be ten times worse.

how to make a good impression on your first day at work law student

Don’t try to impress everyone with your legal skills and knowledge: even if you know more than the people who work there, they will not like you for it! Dress smartly, be punctual, look interested and do exactly what you’re asked to do. Always ask what the deadline is for any work you are given. Don’t be afraid to ask questions about the work if you are not exactly sure what is expected of you.

how to protect money if wife is unfaithful

Limit the amount of money going into joint accounts, or accounts in your wife’s sole name. Make sure that she cannot run up overdrafts or credit card debts that are in your name or joint names.

Stowe Family Law is the UK’s largest specialist family law firm, with offices and divorce solicitors in London, Yorkshire and Cheshire.

With an outstanding national and international reputation, the firm provides a full range of private client family law services. Our divorce solicitors are praised by clients, the media and legal guides for their knowledge and expertise.

Marilyn Stowe and members of the Stowe Family Law team

Question mark image credit: Xurble.

This man was given a substantial sum of money by his parents when he was just 21. He decided to invest it. He bought four properties with the money and spent the remaining £50,000 refurbishing one of them. He has nothing left.

He took his girlfriend to a solicitors’ office; because they were in love and he intended to marry her, the properties were actually purchased in their joint names. His solicitor did not ask him to consider what would happen if the relationship broke down. So nothing was agreed and no protection was obtained for all the money he had put into those properties.

The couple lived together in the most expensive property. Her relations moved into two of the others and his sister moved into the remaining property, on a rent-free basis.

Then the girlfriend became pregnant and a baby. My client has evidence that another man is the father, although the girlfriend denies this. She refuses to move out of the house and “wants her share.” She is suggesting that he sees the baby once a fortnight. To the client’s disbelief he has now also heard from CMEC (formerly the CSA), who require him to maintain the child.

An exam question would state, “Advise the client”. I wonder, how many students would skip it and move on to the next question, hoping that it might be easier?

With a conundrum such as this, where do you start?

I’d begin by recommending the fourth edition of Cohabitation, Law Practice and Precedents by Wood, Lush, Bishop and Murray, which was published earlier this year. It is brilliant and provides succinct answers to this client’s problems, along with all the necessary precedents and court applications.

So how should one advise?

The first step is to ensure that the properties are indeed jointly owned.  The Land Registry form TR1, which is completed whenever a property is purchased, now requires the parties to a property transaction to state whether they hold the property on trust for themselves beneficially as joint tenants, as tenants in common in equal shares or as tenants in common in such shares as might be specified.

As this client appears not to have had advice to protect his contribution, I would expect the form to say they hold the property as beneficial joint tenants. If this is the case, it is almost impossible to avoid a 50:50 split.  The TR1 forms should have said that the properties are held as tenants in common in such shares, as might be specified or as contained in a separate Trust Deed.  The book gives precedents to use, of various different types of trust.

If it appears that the solicitor has not advised properly, a negligence claim against that solicitor may follow. Such a claim runs for three years from when the potential claimant discovers the problem. In this case, if the client had no such advice, then he clearly has a claim against his former solicitor and can sue for the financial loss that he will incur.

My client can seek an order for sale of all the properties under the Trust of Land and Appointment of Trustees Act 1996. He can seek an order for occupation of the properties inhabited by the relatives under the law of landlord and tenants.  The girlfriend, however, has a right of occupation and will continue to hold that right until the present home is sold.

As for the baby, the client can ask for a DNA test to be arranged through CMEC. If the child is confirmed as his, he is liable to pay child maintenance based on a percentage of his income.

He may also have financial obligations under the Children Act 1989 as Schedule 1 enables the Court to make orders for periodical payments, lump sums, settlement of property and transfers of property.  In the case of periodical payments the Court has limited jurisdiction, but can make top-up payments against the amount payable under the Commission.  For example, if a client has a substantial income and receives the top CMEC assessment, the Court can order him to make further payments to meet his child’s needs.  In such circumstances a periodical payments order under the Children Act can include an amount to reflect the contribution of the parent with care to the child’s upbringing. This is known as a “carer’s allowance” and is somewhat akin to spousal maintenance.  The Court can also order, quite separately to CMEC, the payment of school fees and lump sums or property transfers to provide a home for the child, although such lump sum or property would be returned to my client upon the child attaining the age of 18.

Hayley Edwards became an Advanced Member of the Law Society’s Family Law Panel in 2002, and joined Stowe Family Law in 2004. One of the firm’s team leaders, she specialises in cohabitation cases and has been particularly commended by clients for her attention to detail.

 Swordfight image credit: MC Quinn.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.

Rachel Baul

My previous posts about the Child Support Agency and its replacement, C-MEC, drew a number of pointed comments and questions from readers. Thank you to everyone who got in touch.

I would like to emphasise that every case is different and my responses are not intended as substitutes for tailored legal advice. If there are question marks over your case, you should consult a solicitor. However, I very much hope that my answers may be of benefit to questioners and others.

Question: I have recently received the assessment from the CSA. My son’s father has to pay £5 a week – he has lied about his income, and is self employed. He is actually a very successful TV producer who earns at least £50k a year. What can I do to question this? It’s a disgrace and unjust. It reflects a serious loophole in the system and I want to fight it all the way – not just for my son but for other children and their mums. Any advice would be gratefully received.

Rachel says: If you can demonstrate his income, either through paperwork such as proof of contracts or by his standard of living (this may require a private investigator), you can apply to a CSA team that specialises in working out payment calculations for those whose incomes are not easy to ascertain. Unfortunately, when a person’s income is largely cash or fluctuates heavily, it is always difficult to prove that the actual income is greater than the amount disclosed by that person.

I seem to be having a lot of trouble with the CSA the moment. I had my first call from them on September the 20th. They asked me if I would like to complete the application there and then, or have the forms posted out. I explained I was at work so I would like them posted out to me. When my ex partner left the family home months prior to this conversation, she had her mail redirected to her new home. Unfortunately, a lot of my mail was redirected too so I never got the forms.

I had another call from the CSA on the 13th October. I agreed to complete the application on the phone and was informed that payments would be effective from the 13th October. I was advised by the case worker to put some money aside to cover the next two weekly payments of October. I received several letters confirming that the effective date is the 13th but whilst on the telephone with them today, they said it was their mistake and the effective date is 20th September. They have informed me that they will take 40% of my monthly salary until I catch up.

Rachel says: Whenever an assessment is made, it is backdated to the date of the application. Therefore the non-resident parent may end up paying considerably more than 25 per cent of their net salary.

Payment of arrears is compulsory, but there is one course of action available to you. You can ring the CSA and apply to pay the arrears over a longer period of time. Note that this has to be agreed with them direct.  Usually, they seek to recoup arrears within 12 months. However, if the arrears stretch across a period of time that is in excess of 12 months, you may wish to arrange to repay over 2 years or more. See below for more details.

I have recently been contacted by the CSA and asked to pay for my two children. I had been offering my partner 20% of my net salary for weeks but she continued to refuse it because she was convinced that she would get 20% of my gross salary. The CSA have now told me how much I have to pay and they are refusing to take my student loan into consideration. I believe this is unfair because I incurred this debt whilst I was with my partner and after my children were born. Before I graduated, I was unemployed and was earning nothing. Had I not taken the student loan, I would not be in a position to pay the amount that I am able to at the current time.

The family home was signed over to me recently and I will struggle to make the payments and pay – what is in effect – more than 20% of my salary. The response from the CSA was “Tell the student loan body that you can no longer pay them”. My student loan is taken directly from my salary.

Could you please tell me if my student loan should be considered?

Rachel says: I’m afraid that your student loan is not considered when calculating CSA payments. However, you may be eligible for a variation of maintenance (as described above).

Eligibility is centred upon factors that you believe should be taken into account. These can include student loans and/or other deductions at source, or if you are self employed and have lost a contract or source of income since the last tax year.

You can apply for a variation of the maintenance through the CSA by applying with evidence of the factors that you would like to be taken into consideration.  Since October 2008 you have been able to enter into a private agreement and opt out of the CSA.  The CSA is becoming more flexible  – but unfortunately, this is at their discretion and they are not compelled to take these factors into consideration.

When my son was born I had no reason to question whether or not I was the father until some time later when an affair was uncovered. My (now) ex-partner never allowed me to be put on the birth certificate, nor does my son have my last name. He was told not to call me “daddy” and I have no parental rights. My ex says I will only ever get them “over her dead body”. Lastly and this may have just been out of spite when the relationship ended, but she once said to me, “How does it feel to pay for another man’s child?”

I reported this to the CSA whose response was to call my ex and ask her if I am the father. She obviously said I was and in the eyes of the CSA my claim was unfounded.

Now the CSA say I need to apply for a section 20 in court to get a DNA test carried out, but that’s all the information they will give me. Do you have any advice for people in my situation who have signed the form saying they where the father but later have had doubts and would like to clarify the situation?

Rachel says: One particularly tragic circumstance, which has cropped up on the comments section more than once, is when a father accepts the CSA calculation and begins paying out, only to discover at a later date that he may not be the biological father of a child.

When first contacted by the CSA, a non-resident father is offered the opportunity to take a paternity test.  The non-resident parent pays for the test and if he is shown not to be the father, he is reimbursed.  If the test is refused and a person wishes to contest at a later date, there will be no such reimbursement. When a paternity test is taken at a later date, the parent must apply through the magistrates’ courts for a declaration of non-parentage and to obtain a paternity test from a specialist firm.  We are able to assist with this somewhat complex procedure and liaise with the CSA to ensure that matters are resolved.

It is important to note that the CSA does not refund child maintenance that has already been paid prior to contesting parentage.

Also, even if a person is not the biological parent of a child, they are able to apply for contact with the child on the basis that they have been a de facto parent. We can assist a step-parent or equivalent in applying for contact with the children of their ex-spouse or ex-partner.

Will I receive more maintenance if my child is disabled?

Rachel says: No. The CSA uses a flat rate calculator and does not factor in special educational or care needs.  We have been asked if, in such circumstances, the court can order a top-up of maintenance. Unfortunately, this is not a case unless the non-resident parent has a net income in excess of £2,000 per week.

However, the resident parent can make an application through the courts in respect of provision of accommodation, capital and school fees where appropriate.

Your site contains a wealth of detailed information, especially your reference to the Child Maintenance and Enforcement Commission (CMEC) and I would be grateful to receive clarification of reported implementation dates for revised legislation detailed hereunder:

• CMEC will operate on the percentage based scheme as seen in CS2 rules but income of the NRP will be taken from the latest available tax information.

• Child maintenance will be calculated on the gross income of the NRP.

• Percentage rates will be set at 12% for one child 16% for two children and 19% for three or more children.

• Increase the capping of income from £2000 pw to £3000 pw

• One year fixed term payment schedules will be imposed, with variations to maintenance payable allowed only if a minimum 25% change of income is reported.

Rachel says: There has been a great deal of interest in what the CSA will charge going forward. Unfortunately, at the time of writing we are still awaiting confirmation from CMEC or the CSA as to what percentage of income will be used to calculate maintenance in the future. We will keep you posted…

Finally, a note on appeals:

I have been charged arrears and the CSA cannot provide a breakdown of these arrears. What can I do? I’m still having to pay, although I know for a fact I do not owe them. This is on top of what I already pay – in total, £320 out of £1000 a month

Rachel says: An appeal must be made within 1 month of the CSA’s decision, if it is received outside of the time limit then the appeal may be disregarded.  The CSA produce a leaflet detailing how to appeal and this includes an appeal application form.  However, when considering an appeal consider whether you are appealing the calculation or the timeframe over which this has to be paid.  A risk of appeal is that the calculation may go up as well as down.

Upon receiving a valid appeal the CSA will contact you to try and resolve matters, if it is not resolved a submission is made by the CSA to the appeals tribunal.  This includes all of the information that the CSA used to make their decision and all documents and information provided with the appeal application.  This can be a long process and you are required to pay the assessed rate of child maintenance throughout.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.

In addition to my day to day work, I was invited to appear on BBC 1′s The One Show, to discuss the imminent introduction of the Child Maintenance and Enforcement Commission (CMEC). It is set to take over from the much-loathed Child Support Agency. However, as I have noted in previous posts about the CSA, there are already question marks over this replacement organisation’s fitness for purpose.

I note that on The One Show’s blog, the topic has already attracted almost 300 comments from viewers. Frankly, I’m not surprised. For many of those who have encountered the old CSA – be they parents, children or legal professionals – feelings about this deeply flawed  organisation run high.  Click below to see the item.

Readers who seek further information about CMEC may wish to read Rachel Baul‘s recent guest post: From the CSA to CMEC: 10 Things That You Should Know.

On Monday I appeared on BBC Radio 4′s Law in Action programme, along with David Lister from Mishcon de Reya, to discuss the impending divorce between Madonna and Guy Ritchie.

On air, I was at pains to point out that these big celebrity cases can give the impression that divorce is always “an absolute nightmare” – when the truth is that the process can be far less painful.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.