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extending a court order to provide uni fees

(59 Posts)
determinedmum Mon 14-Mar-11 21:18:10

Does anyone know if it is possible to ask the court to extend an order for maintenance for children-currently till they finish secondary education- to be extended until they finish further education?
Essentially I bought my exH out of the family home 10 years ago, as ruled by the court after a contested hearing. At the same time a consent order was made whereby exH paid me money for each of the 2 children till they left school or were 17 whichever was later. He stopped this when the eldest became 18 even though both were still at school at the time. The eldest has now started uni. As exH has not responded to reminders and requests and the younger child is about to leave school I am planning to ask the court to make exH pay the arrears (?how?) to me and also in future pay an allowance directly to the children till they finish further education.
Financially I know exH has no problems: he is just being cussed as he wants the best possible lifestyle for himself.
What is the best way to achieve a contribution to uni costs for the children and payment of the amount he owes me? Can I just apply to have the original order extended?

Resolution Mon 14-Mar-11 22:20:03

Apply immediately within the divorce proceedings for an extension/fresh order. It can only be backdated to the date of the application , so act quick. You should get maintenance updated as to quantum, though at least some of what is paid for a child in university will be payable to the child direct.

determinedmum Mon 14-Mar-11 22:32:44

Thank you -very helpful indeed- what does 'updated as to quantum' mean?
Should I ask for any to be paid to me because of needing to maintain the current home for uni holidays or should I ask for all of any maintenance extended beyond school age to be paid to the children?

determinedmum Mon 14-Mar-11 22:35:18

Does 'updated as to quantum' mean updated as to the amount? Are there guidelines for amounts? For instance could I ask for half of the costs of university education to be paid to the children?

Resolution Mon 14-Mar-11 23:24:00

Updated as to amount, yes. Will take everything into account, eg what the CSA would make him pay, increases in his income since the original order, changes incircumstances all round ( eg dies he have a new family and new kids - had he married a millionaire?).

Gottakeepchanging Mon 14-Mar-11 23:28:29

Are any parents expected to pay for uni?

I know that many including us do however my understanding is that through loans the child could be self financing and so not dependent on either parent.

I know nothing about maintenance and so just a query really.

determinedmum Tue 15-Mar-11 06:17:14

Loans dont cover the total amount needed for uni-especially for London students, and especially if one includes books, clothes and transport costs- and I imagine that most parents would contribute the top up needed. Many parents I know try and contribute a substantial amount to decrease the future debt of the student. There will probably be a futur issue about funding postgraduate qualifications for which no loan scheme is available.

In this case exH contributed to school fees, so a contribution to uni fees/maintenance would not be unreasonable to expect. Otherwise I would be left with the unsustainable whole burden of maintaining the family home and two children at uni. Neither of us has remarried.

He could (and I expect will) argue that the children should get a part time job to make up the deficit. I am not quite sure what to say to that.

rainbowinthesky Tue 15-Mar-11 07:07:22

I am amazed that a parents can be made to pay maintenance when a child is no longer a child but an adult.

Resolution Tue 15-Mar-11 07:15:29

Parents will usually do what they can to support a child through uni. Unfortunately some become parsimonious when they separate from the child's mother. Why should those kids miss out? It's usually not more than the parent was paying through school. The loans argument shouldn't impress a judge.

determinedmum Tue 15-Mar-11 15:32:17

Judge wants both parties to fill in financial statements all over again. Plus another hearing. Exactly as exH wanted. The hearing will be in September too close to the start of university term to enable sensible budget planning for student accommodation.

Devastating and stressful. And probably pointless.

freshmint Wed 16-Mar-11 15:52:48

actually if the child is 18 you can't apply for a variation for maintenance for her. she can, however, apply in her own right for an order against her father.

You can apply for a variation/extension for the younger child if he/she is still under 18

If you both apply it may be that they are heard together but that will be for the court to decide. It would seem to be sensible to do so.

Yes any variation or application for ancillary relief by a child who is no longer a minor will require brand new Forms E I'm afraid.

Is this not something you can discuss together and reach an agreement on? Even if he pays your children a maintenance allowance directly? That would be the much better approach if at all possible. You could even get it mediated.

freshmint Wed 16-Mar-11 15:56:25

ps the judge really has no option. You have to file full financial information pursuant to the rules. how can she/he make a decision if she/he doesn't know if your husband can afford it? or what your situation is? You might have won the lottery/married a billionaire since the divorce. I heard of a bloke last week who won £195,000 on the lottery between filing his Forms E and having his first appointment....

Resolution Wed 16-Mar-11 16:51:14

Is that right freshmint? Under s23(4) of the MCA the court can make further orders from time to time, and they can last until the cessation of education. I thought the child could apply but the mother can also apply too.

(This'll have her reaching for the red book).

freshmint Wed 16-Mar-11 17:03:24

no the child must apply if over 18
s23(4) only applies to a child by action of 29(1) and (2)\

now trying to find the bit which allows the child to make an application for ar

freshmint Wed 16-Mar-11 17:06:25

hmm but 29 3a excludes children in education

let me work it out

I had an application for maintenance by a kid against father a little while ago. mother sitting beside her. dad had no money though

freshmint Wed 16-Mar-11 17:15:13

27( 6A)

Where a periodical payments order made in favour of a child under this section ceases to have effect on the date on which h the child attains the age of 16 or any time after that date but before or on the date on which he attains the age of 18 then, if any time before he attains the age of 21 an application is made by the child for an order under the subsection the court shall have power by ore to revive the first-mentioned order from such date as the court may specify, not being earlier than the date of the making of the application, and to exercise its powers under section 31 [variation] in relation to any order so revived

but that only relates to orders made under s27 to begin with

freshmint Wed 16-Mar-11 17:27:47

ok look at the notes to s15 children act headed "orders for financial relief for persons aged over 18".

Child has to apply - if an order existed before he was 16 and child is in full time education or there is another good reason (usually relates to disabilities or something) the CHILD applies for an extension under MCA, if there was no such order the CHILD applies under Sch 1 para 2 of the Children's Act.

No ability to make or extend an order on parent's application once child is over 18.

sneezecakesmum Wed 16-Mar-11 21:21:00

I did read about a precedent being set fairly recently. The daughter about to start university got legal aid and took her father to court for payments of CM to continue after age 18. See a solicitor for advice.

freshmint Wed 16-Mar-11 21:53:10

is that jones v jones?

the courts see these cases more often than you would imagine. not all the time, but now and then. especially since fees for uni.

sneezecakesmum Wed 16-Mar-11 21:59:53

Something like that, I cant find the website that shows you these precedents as I am a rank amateur! Will look now!
Doesn't appear to be - thats a man a wife. How on earth do solicitors look up precedents if they are bad on names. Or can't they afford to be!!

freshmint Wed 16-Mar-11 22:05:36

there is a nice database you put in random words a la google and it spews up likely options

or you ask the spoddy bloke in the room next door who remembers all the case names AND has a good stab at their reference hmm

sneezecakesmum Wed 16-Mar-11 22:36:49

I want one of them wink

sneezecakesmum Wed 16-Mar-11 22:39:08

I can do all sorts of clever things with medicine databases though - did you know that according to Toxbase fresh dog poo is not very dangerous but old dog poo is (toxicara cannis!!)

determinedmum Wed 16-Mar-11 22:44:05

The application I made quotes 29 /3/a and 31 and 27/6/b of the matrimonial causes act 1973 if that means anything to anyone as the children are in continuing education. It was made in the divorce proceedings as a variation and extension of an existing order in those proceedings is being requested.

Thanks for pointing out that forms E would be routinely asked for all over again- it is so easy for a lay person to feel got at through ignorance. I must admit I dislike revealing my financial circumstances in court as I feel it is an invasion of privacy.

Anyway I got the arrears of maintenance while the children were still at school for one of the children, but not for the other who, though still at school, now lives mainly with the father. Even though the original order provided for maintenance for both children.

And the hearing to decide whether the father should pay for uni education and if so how much is in September. And we have agreed to go for mediation meanwhile apart from submitting forms E etc. Are there any guidelines as to amounts it is reasonable to ask fathers to pay young people in further education? I was thinking of basing it on half the cost of (tuition fee plus accommodation fee plus maintenance) per young person and for each young person to get the same amount in the interests of equity. It is what a non divorced family might do. Is this reasonable?

determinedmum Wed 16-Mar-11 23:00:20

Do you think there are there any benefits or risks in asking for exH to pay for the younger child while I pay for the older?

Do you think I should aim to use the words 'further education' rather than university so as to cover post grad?

determinedmum Wed 16-Mar-11 23:05:39

I looked up Toxocara Canis- the age of the dog poo doesnt matter- its the age of the person which matters- young children are more likely to get Toxocariasis because of being more likely to accidentally eat infected dog poo.

Resolution Thu 17-Mar-11 00:44:50

Usually just covers to end of first degree. Saves the long suffering parent being held hostage by the eternal student.

There's no set calculation like the CSA, though the CSA calc will be a factor.

You can't split the kids up and have one pay for one and the other for the other.

Freshmint - s27 (6A) says (6A)An application for the variation under section 31 of this Act of a periodical payments order or secured periodical payments order made under this section in favour of a child may, if the child has attained the age of sixteen, be made by the child himself.

But the CMO is made under s23 normally. There is nothing that says that the mother can't apply. Indeed the whole basis of s23 is that the mother receives the PPs on behalf of the child , and that they can be extended over 18 years if the child is in education.

To say that the child is the only one who can apply (and therefore pit them against their father) would put every child in an invidious and intolerable position.

determinedmum Thu 17-Mar-11 08:14:37

Thank you very much.

This makes me feel much better as I didn't think it right to split up the payments for the children either- the suggestion came from ex. Also agree about not pitting children against their parents through the family law courts.

But can mother apply to have the existing maintainence order varied so that the allowance is made directly to the child instead of the mother? This is what I am suggesting.

I cant help thinking that even though one has to maintain a family home for over 20 weeks in a university year, that it is unlikely an exH will continue to pay the mother. Anyway the point is to help fund uni, to help ensure that exH contributes to (expensive) education and decrease future debt for the children.

freshmint Thu 17-Mar-11 08:16:35

no you have to read s23 properly
the effect of it is the mother can apply for a CHILD for maintenance and that can only extend to over 18s when they are in education

but if they are not a child at the time of application they cannot apply. the child must apply for him/herself.

I am absolutely certain of this.

It is invidious and anyone who has sat in a room while an adult child is applying against a father who has recently been made redundant from an executive position, and the child is saying "you've only made 16 job applications in 12 months? But I applied for 20 bar jobs in a weekend, you aren't trying hard enough" knows exactly how invidious and intolerable it is.

But that IS the reality

freshmint Thu 17-Mar-11 08:17:35

yes child MAy between 16 and 18 but over 18 they must as they are no longer a child in respect of which the mother may make an application

trust me

Resolution Thu 17-Mar-11 10:07:56

23. On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say—

(d)an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified;

subject, however, in the case of an order under paragraph (d), (e) or (f) above, to the restrictions imposed by section 29(1) and (3) below on the making of financial provision orders in favour of children who have attained the age of eighteen.

29 Duration of continuing financial provision orders in favour of children, and age limit on making certain orders in their favour.E+W
(1)Subject to subsection (3) below, no financial provision order and no order for a transfer of property under section 24(1)(a) above shall be made in favour of a child who has attained the age of eighteen.
3)Subsection (1) above, and paragraph (b) of subsection (2), shall not apply in the case of a child, if it appears to the court that—
(a)the child is, or will be, or if an order were made without complying with either or both of those provisions would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or
(b)there are special circumstances which justify the making of an order without complying with either or both of those provisions

Resolution Thu 17-Mar-11 10:08:26

This seems to suggest that the parent can apply on behalf of the child at any age.

mumoverseas Thu 17-Mar-11 15:20:32

<mos wonders if reading this thread will count as half an hour of CPD?> wink
Have to agree about the first degree point. I used to always include that in Consent orders just in case...

Resolution Thu 17-Mar-11 15:30:04

See what you mean about CPD!

This is one of those things that I've always taken for granted is the case - I've done them in the past anyway!

I'm prepared to be shown up as an ignoramus by freshmint though.

mumoverseas Thu 17-Mar-11 15:33:19

Well I wouldn't say you were an ignoramus. I think it is how you interpret the rules and as we know, different DJs view things differently. grin

freshmint Thu 17-Mar-11 15:50:10

Hello just come back from court and checked it with a DFJ

Over 18s will have to apply in their own right as they are no longer children

Mother cannot apply to extend or vary since the order as relating to that child ceased upon leaving secondary education/turned 18 (whatever the wording is) so there is no order in respect of that child to extend or vary

Mother should have done it before the term ended or Child does it now.

Well that is the word from the Thames Valley anyway

freshmint Thu 17-Mar-11 15:51:37

ie doesn't fall within 23(d) or 29(1) because there is no child. That child is now an adult

WkdSM Thu 17-Mar-11 16:03:25

Wow.
When I went to college I never expected my parents to pay - I did get a grant (yes showing age) but I also worked at weekends and worked every holiday so that I could actually afford food. Grants did not cover everything at all. I think I actually got about £20 a week to pay rent food travel etc.

My SS is looking at applying to go to Uni after 2 years out of school. Does this mean he could come to us and ask for maintenance?

We have had a similar situation whereby when the CO ran out (at 17) the ExW had to apply via the CSA as the CO was no longer valid.

Resolution Thu 17-Mar-11 16:16:22

So how do you account for s29(3)? It hasn't been repealed. If you can't apply for a CMO for a child over 18, why does 29(3) say that doesn't apply to a child in education, so 29(1) can't be used to deny a mother relief.

The definition fo child anyway in s52 makes no reference to age...

your turn.

freshmint Thu 17-Mar-11 16:36:51

because it is used to justify making an order which will extend past the child's 18th birthday if they are in education /have additional needs

well that is what I have always understood and that is what the CJ I spoke to (who as I say is the dfj) told me he understood

If you read the notes to s15 of the children act the one headed Orders for Financial Relief for persons aged over 18 says that if there was an order in force under the MCA before the child reached 16 the CHILD can apply to extend [but obv it can't if the order has ceased, it would have to apply] but if no order had been made then the CHild applies under schedule 1 para 2 of the CA if they are in education or have special needs.

Nowhere does it talk about an adult applying for them

I don't understand how this works, and why divorce is relelvant?

- can an 18 year old take her still-married parents to court to force them to provide money to fund her uni career? (no, surely)

- so what's the reasoning that allows her to take her divorced parent to court for money? confused

Resolution Thu 17-Mar-11 17:06:02

Strokes chin and lights imaginary pipe in quiet contemplation.

I'll sleep (or not!) on it.

freshmint Thu 17-Mar-11 17:55:01

a bit of judicious googling might throw up some commentary I suppose

mumoverseas Thu 17-Mar-11 18:00:08

<logs another half hour of CPD>

freshmint Thu 17-Mar-11 18:06:59

<gives mumoverseas a curling egg mayonnaise sandwich and a gallon of too-strong coffee>

mumoverseas Thu 17-Mar-11 18:19:12

oh jolly poor show. At my old firm we used to have posh sandwiches from M & S when we did LNTV CPD. Would rather have a wine sad

freshmint Thu 17-Mar-11 19:09:13

don't you know there is a recession on?

<sacks an NQ>

determinedmum Thu 17-Mar-11 19:44:07

Luckily I made the application while the original consent order was still in force. Does that increase the chances of getting an extension plus variation without 18 yr olds making sarky remarks in court to either parent?

Its bad enough them (DC) commenting on how little homework I do when in the privacy of one's home. Saying I did A levels, degrees, massive overtime etc years ago doesn't cut it.

Though perhaps they might be silent in court, as not being the children of lawyers it is (very) intimidating. Incidentally, to an applicant, the variations in interpretation which can then, when translated to a judgement either way, go on to very considerably alter children's future finances, are not necessarily reassuring. I really appreciate all the comments though.

Resolution Thu 17-Mar-11 19:52:07

We'll try and achieve consensus for you.

freshmint Thu 17-Mar-11 19:56:54

if you made the app when the consent order was in force then your child will have nothing to do with it, it will be between you and your ex.

so that's good!

determinedmum Thu 17-Mar-11 20:05:27

Encouraging.

How does mediation fit in with forms E and hearings? Is the idea that one thrashes thing out at mediation then takes the resulting consent order to court for a final judgement?

freshmint Thu 17-Mar-11 20:11:23

yes a consent order will need to be approved by the court if you want to finalise the financial settlement

same as if you just reach agreement by negotiation between the parties or their solicitors or through a collaborative process

mediation would be pre-forms E and if successful wouldn't require a form E just a statement of information (M1) from each party setting out income capital pensions etc on a single page

determinedmum Thu 17-Mar-11 20:29:04

If the order is still in force for the younger child but out of time for the older one (now at uni) will/can the future hearing/mediation take both children's needs into account?

The judge seems to have agreed to a hearing for both children's uni fees thus far. But then realistically does this mean that the judge cannot make an order for both children to get the same amount for uni fees or am I just getting my knickers in a twist?

determinedmum Thu 17-Mar-11 20:41:24

Forms E aaarrrgggghhhhhh Pensions aaaaarrrggghhhh Statement of information M1 aaaarrrrgggghhhh.

I need that 18 month financial spreadsheet mentioned on another thread on mumsnet on pick of the day recently. Which I don't have (the spreadsheet I mean). I cant imagine a judge being remotely interested in it even if I did have one. exH would be interested though. Nosey he is.

Off to get coffee..... Nice Italian freshly ground coffee, freshly brewed and poured into a lovely portmeiron mug.

freshmint Thu 17-Mar-11 20:41:42

no only the younger child if I and the family judges in the thames valley are right but yes if Resolution is right

Interesting that they have listed it for both. If the older one no longer has an order then there is nothing to extend or vary (which is what you will be seeking for the younger one). So even if Res is right I'd expect you to need a separate application for the older one and if I'm right the older one would need to apply in her own right

Although it would be sensible to hear them both together

When is your hearing? Imminent? And where are you geographically?

determinedmum Thu 17-Mar-11 21:35:22

The hearing is in September.

exH offered to pay for mediation so no idea when that will be as he was asked by the judge to organise it. Presumably before September. One month from now to file forms E.

Dont know if I should say where I am geographically. Why do you ask?

What does mediation involve?

freshmint Thu 17-Mar-11 22:06:22

only asking because it seems, if resolution is right, that there may be different approaches in different areas

If your court is oxford reading milton keynes slough it may well be your daughter will have to apply herself

I would have thought that would be the case everywhere but resolution thinks differently and may be right

sounds like you will have to do forms e unless you can get to mediation and reach an agreement in a month. I'm sorry about that.

freshmint Thu 17-Mar-11 22:09:21

mediation is just sitting down with a mediator who is probably not legally trained, and probably with your lawyers (who can advise if what you are agreeing is something which the court is likely to approve) and trying to thrash out an agreement. With the mediator trying to point out if somebody is maintaining an untenable position in a conciliatory way and trying to find other ways of meeting their concerns etc.

It won't work for people at complete loggerheads holding on to ridiculous positions but it does work for people who would like to avoid court and are willing to make compromises to do so.

since this is about your daughter and her education it may well be that it is very suitable for mediation as it shouldn't be painfully personal unless either party uses it as an excuse to make it so

determinedmum Thu 17-Mar-11 22:44:13

Thanks- not daughter-not Thames Valley. Just as well really by the sound of it. Resolution's approach was the one advised to me.

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