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How enforceable is a child maintenance agreement made as part of a divorce?

(19 Posts)
viewfromawindow Fri 19-Aug-11 15:48:37

My exH and I divorced in 2005 and as part of the proceedings we made our own financial agreement which was written into the divorce papers. He agreed to pay me 17% of his net salary Inc any bonuses etc. He has stuck to the agreement and pays me a considerable amount for our DD. However.... Someone said to me the other day that once she reaches 18 the part of the agreement that says the payments continue until she leaves full time education Inc university, becomes no longer enforceable. Given the increasing cost of uni this is a concern? Can I enforce this part of the agreement?

MrsS01 Fri 19-Aug-11 15:53:30

Sorry I don't know the answer to your question, but i don't think any of it is enforceable if the XH is unwilling to pay. We divorced when our DS was 1 (aged 8 now) had a maintenance agreement written into the divorce and he hasn't paid for years sad

viewfromawindow Fri 19-Aug-11 16:02:15

Sorry to hear you haven't had any payments. Have the csa not been of any help?

MrsS01 Fri 19-Aug-11 16:06:46

I've tried the CSA but am still fighting it. The CSA said they could only help if they cancelled the original agreement - so I agreed thinking I would get somewhere but haven't, so just be wary if you end u down that route. Basically my XH is claiming he has no money as he's not working (although I know he is). Good luck, hopefully your XH will continue to help.

Collaborate Fri 19-Aug-11 18:32:03

OP I need you to be more specific. Please type out the paragraph that provided for this.

Spero Fri 19-Aug-11 18:36:19

As I understand it the gov wants everyone to go thru CSA or Cmec or whatever it is now, so any court order that purports to deal with child maintenance can be abandoned after a year if either party applies to CSA. At 18 your daughter will have a right to make her own application against her father, if it should come to that but I hope it won't.

viewfromawindow Fri 19-Aug-11 20:20:55

Collaborate the wording is:
The respondent do pay periodical payments to the petitioner for the benefit of DD at the rate of 17% of his net salary including bonuses, until the child attains the age of 18 years or ceases full-time tertiary education whichever is the later with the payments being made monthly in advance on the first day of each month.
I thought this was a legal agreement as it is from the county court. The document is entitled general form of order - ancillary relief.
All advice much appreciated!

Collaborate Fri 19-Aug-11 22:09:43

What you have is a court order that lasts until the end of university education. The quantum obviously isn't specified, but the mechanism for calculating it is.
Whoever told you it becomes unenforceable doesn't know what they're talking about. Rest easy.

Spero Fri 19-Aug-11 22:32:02

Sorry but I am definitely right about orders for child maintenance becoming unenforceable after a year. Not sure when it came in force, this order was 2005, was it after then? But with regard to tertiary education, child will have their own right to apply, so shouldn't be issue.

prh47bridge Fri 19-Aug-11 23:09:56

Sorry but you are definitely wrong about orders for child maintenance becoming unenforceable after a year. Once the order has been in effect for one year either party can refer maintenance to the CSA and their calculation will then replace the court order. If neither party refers the matter to the CSA the court order remains in force and enforceable.

Collaborate Fri 19-Aug-11 23:53:09

That's right. Also, when secondary education has finished, the CSA cannot assume jurisdiction so the power to bring the order to an end ceases to exist.

OP when was the order made? If I recall correctly this applies to orders before some time in 2003.

We've had this issue before on whether a parent can apply for child maintenance. Nowhere in the matrimonial causes act does it say that a resident parent cannot apply for maintenance for a child in higher education. It's just that at that stage the child may apply in their own right, but so too can the resident parent.

viewfromawindow Sun 21-Aug-11 08:53:00

Thanks guys! So as long as he doesn't go to the csa before she gets to 18 then the order stays in place. Good. He earns a LOT (latest p60 said £110k) but is frankly a lazy arse when it comes to managing his cash which I think will play to my advantage. Unless someone actively tells him he is better off with a csa based payment then it won't occur to him to research it. I'm using the cash I get for her to send her to a private secondary school as I want it to benefit her 100%.

STIDW Sun 21-Aug-11 12:49:36

The 12 month rule was implemented at the beginning of March 2003, the 3rd if memory serves me well.

Maybe one of the lawyers can confirm. A barrister told me that in his opinion even if the CSA become involved and an order for child maintenance had became ineffective the courts were likely to revive/make a new order to reflect the intention of the original order.

Collaborate Sun 21-Aug-11 16:57:50

STIDW that date rings a bell. Thanks.

The court simply wouldn't have the power to make a new order, although it could make a school fees order at any time.

babybarrister Mon 22-Aug-11 19:51:18

presumably given xh earnings CSA would not have jurisdiction anyway - would it? [prepares to be flamed corrected by collected force of collaborate/prh47/spero etc etc ]

viewfromawindow Mon 22-Aug-11 23:11:10

Babybarrister, how does his level of income impact the jurisdiction of the csa? Not heard this one before but interested.

Collaborate Mon 22-Aug-11 23:37:43

Would still have jurisdiction. Just that any income over £2000 p.w. net is ignored. Court might be prepared to make a top up order though.

STIDW Mon 22-Aug-11 23:40:23

The CSA only makes an assessment on income up to £2k/week. If the non resident parent's income is above that it's possible for the courts to order a top up payment.

Sometimes there is an order for a global amount of maintenance to cover both spouse and child maintenance. If you are paid SM it would be worth checking the exact terms of your order. It may be worded in such a way that if the CSA becomes involved and increases or decreases CM, then SM decreases/increases £4£ so that there is no alteration in the global amount payable. If that is the case there would be no point in either party applying to the CSA.

viewfromawindow Tue 23-Aug-11 09:28:55

Ahh I see. Well he only (!) used to earn about £80k when we originally split up. He hasn't had any pay freeze unlike me so his has just kept going up! I don't get SM - was determined to only take money for my DD and was in a position to allow me to do this.

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