Derbyshire Legal Talk: May 2009
PUBLISHED: 15:17 29 April 2010 | UPDATED: 16:00 20 February 2013
Legal talk with Nelsons.
Question: I have separated from my wife and our two children are living with her in the family home. She says that I have to pay money for her own use and also money for the children. Is this right?
ANSWER: Money to support a family after separation is known as maintenance. There are two aspects to this - money for the husband or wife and then money for any children. If a couple are not married, there is no legal obligation to pay money to a former partner for themselves, but there is an obligation to support children.
As far as children are concerned, most people are aware of the Child Support Agency which has now been replaced by another government agency called the Child Maintenance and Enforcement Commission, or CMEC. Its objective is to encourage parents to make voluntary arrangements for children's maintenance, but also to support formal applications for maintenance under the Child Support Act 1991. There is also a new service called Child Maintenance Options, which provides impartial information on all of the options available.
Parents have always been encouraged to make arrangements directly between them and prior to the introduction of the CSA, if parents could not agree, the family courts could make maintenance orders for children but these powers are now very strictly limited.
This means that parents who cannot agree a figure between them have no choice but to put the matter in the hands of the CMEC. The CMEC calculate maintenance based on a percentage of the gross income of the non-resident parent, and four different rates have been introduced, depending on that parent's income. On the 'basic rate', the percentages of gross income payable are 12% for one child, 16% for two children and 19% for three or more. There are further amendments to this in that a two-tier system exists which benefits higher earners. This system does make calculating payments more difficult so specialist advice from a family lawyer may be required.
Often a better way of setting child maintenance is to work from a budget. If people are able to discuss their outgoings between them, it may be possible to reach a figure which is acceptable to both parents. It should be remembered that the obligation to support children financially rests with both parents, not just the one who no longer lives with the children.
In terms of maintenance for spouses, there is no statutory framework and it tends to be looked at after the child maintenance figure has been agreed. On divorce, a court can order that one spouse pays ongoing maintenance to the other, although this is not a foregone conclusion and depends on the case circumstances. The court will also have to consider whether there should be a 'clean break' between the parties, as ongoing financial links can cause friction and possibly further court hearings in the future.
Nelsons have one of the largest family law departments in the East Midlands who will advise and guide you with clear, practical advice recognising your needs at all times. Our philosophy is one of 'going the extra mile' and of offering clients nothing less than exceptional value for money.