Child access during separation / refusing to pay child maintenance

[Haditnow]

My husband and I have been separated for 8 months. He won't engage in discussions about divorce or make a separation agreement. He has twice failed to pay a monthly financial contribution and is threatening to stop paying enough to cover his half of the mortgage, bills, childcare, food, etc. Despite this he is adamant he wants to take our children away to Europe for 3 weeks in the summer. The children and I live in Scotland. He has lived in Europe for the past 6 years and sees the children (9 and 12) about once a month, sometimes less. They aren't happy about being away from me for such a long time and I don't think he's actually competent to take care of them for this length of time. My eldest is autistic and my husband has refused to accept the diagnosis. He really doesn't understand what she needs or how to manage her meltdowns. He will be holidaying with his parents, his dad has recently had heart surgery. His parents are also not very competent or able to meet the girls' needs, they only see them every one or two years and had nanny's to bring up their own children. Can I take legal steps to ensure a monthly financial contribution and / or prevent him taking the girls away for such a long period as they are not happy to go?.. and should he be allowed access if he is not contributing financially? He has never spent more than 5 days alone with them i.e. Without me there. He has said in the past he planned to take them to work with him as there is a field they could play in! He works in an industrial plant. It would be more than 30 degrees in summer. His main objective is usually to go to work, have someone else look after his children and then he turns up for dinner. I usually do this but now it will be his mum! TIA

You can go to the CMS to secure maintenance but this might threaten your informal payment arrangement for mortgage and bills. My ex hasn't paid maintenance for years but I don't stop him seeing DD because it's not what is best for her. I'd let my kids go on a holiday as that's also in their interests (you can prepare your eldest). Realistically in your position I'd be finalising your separation asap, get onto the CMS and just try to keep in your head at all points that it's about the children, not him and not you x

Hi OP, I’d honestly advise you tread really carefully with this. You’re on really tricky ground if you’re living together while “separated” in terms of finances because actually all you’d be entitled to from him if separated would be child maintenance, the figure CMS gives for that is unlikely to be as high as the amount he is currently already contributing towards bills/food/childcare so if you push on for a monthly child maintenance figure then you may well find he realises he can JUST pay that, rather than also having to pay for childcare, food etc.

Make sure you aren’t going to be cutting your nose off to spite your face. If CMS says be should pay for example £250 a month, and he currently contributes £600-700 by paying food/childcare bills then you’re going to be worse off overall if you push & he just pays child maintenance.

It sounds like he is contributing financially.

We don’t live together as he lives/ works in Europe. I live in Scotland with our children. He turns up once a month or less (when it suits him) and expects everything to revolve around him. He won’t let the children see their friends or have sleepovers because “they should be spending the time with him”, although he frequently schedules work calls and leaves them watching tv. As we have a shared mortgage my understanding was that he is obligated to pay his half and obligated to contribute to costs of raising children. I feel if he won’t pay what is fair (his salary is 4 times mine but he contributes £200 less than I do per month) he shouldn’t expect to call the shots about holidays (especially if the girls don’t feel happy about going). I’m not asking for huge sums of money, just the basic costs (mortgage, bills, childcare, kids activities, food etc.) split down the middle, even though I operate as a single parent for 95% of the time. I’ve said we should sell the house asap to get a clean break but he won’t engage in discussions about a plan for the future. Ultimately I don’t think it’s in the children’s best interests to be away for 3 weeks as they don’t want to go and he is unlikely to meet their needs… I’ve told him I’m happy for him to have half the school holidays if they are happy with the plan. But they are not..

Unfortunately OP your understanding is actually incorrect, in fact if you are the one living in the house and he is not then actually he could go after you for what is called “occupational rent”, whereby you would have to pay the whole mortgage as you pay his “half” to be able to live there while he doesn’t.

If you are genuinely separated then all you are entitled to in terms of financial help from him is child maintenance, and that is likely to be a much lower amount that you currently get from him if he is paying you for half mortgage/bills/food/childcare. If you push for CMS he could & would be well within his rights to say “Okay, legally that’s ALL you get” and you will then be much worse off so be careful.

What you’re asking for isn’t crazy but it’s also far beyond what he is legally obligated to give you, so be very careful that if you push and push he could just turn round and say yep, here’s CMS but that’s all you’re getting, at which point you’ll be stuck.

You need legal advice OP because you need someone to set it all out clearly. The previous posters are right that it's not fair but he really can get away with contributing very little indeed. And the house may need to be sold if you cannot afford it by yourself / cannot buy him out.

Agree with others that you risk h stopping paying the mortgage and share of bills if you go for cms. What’s higher ? It’s unlikely he’d pay both nor will he be made to in all likelihood

you can’t stop access if he doesn’t pay either- it just doesn’t work like that

3 weeks isn’t that long tbh, what specifically are your concerns re welfare and looking after their needs ?

I think you need to separate the two issues.
There's one around finance and maintenance and you do as PP suggested need to check carefully the position financially with a solicitor or someone who can give specialist advice

The second is around kids and holidays. A 3 week holiday is long but not overly so, especially given the ages of the children. If they don't want to go then all you can do is suggest that he talks to them about plans before making any and encourage them to be clear with their dad what they would like to do in a holiday. If you genuinely believe their welfare would be harmed given your DD then you can push back and ask for the courts to get involved to determine access arrangements

My eldest is autistic and he hasn't accepted the diagnosis, saying "she's fine when she's with me ". He has witnessed some meltdowns but tends to just walk away and leave me to deal with it. Holidays are a peak time for her to struggle as so much change, unpredictable things happening, no routine etc. When she melts down her behaviour is quite extreme, she has threatened to stab herself or her sister with a knife, tried to jump out of windows, runs away, shouts, swears, screams and totally loses control. I have asked him to do an autism parenting course so he can understand her needs better but he refuses and won't engage when I try to explain what she needs or how to make things easier for her . That's what worries me. He is pretty selfish, makes a timetable to suit himself e.g. Prefers to eat later so doesn't bother arranging dinner until they are hangry, prioritises work over everything and leaves them on tablets for hours.

With the money he's frequently threatening to stop payments, giving only half agreed amount with no notice and telling me I need to become financially independent. It just seems mad that he can potentially contribute nothing despite earning over £100000 and continue to see his children whenever he wants! Will contact a lawyer... Thanks for advice so far

I would definitely seek legal advise . The fact he lives abroad does complicate things so you need more specific advise rather that guesswork from people online . If you have been separated that long you can proceed with a divorce anyway

good luck

If I was in your shoes and everything was informal, I'd refuse the holiday and wait got him to take me to court.

He may well do so but you're not technically "in the wrong" when there's no order in place.

But he may well cut the money. It's a choice/ risk you need to make.

*wait FOR him

Children are not pay per view. The maintenance payment ( or lack of) should have absolutely no bearing on whether you allow him to see the children and quite frankly it's disgusting that you would think access should be decided by whether he pays or not. The financial side as others have said is tricky, he has no legal obligation to be contributing to mortgage and bills now at all, and since he lives and works abroad you'd need to check whether cms could even enforce child maintenance. As far as the trip abroad, no you don't have to agree to that. Both parents need to agree to foreign travel, and if you have concerns about the children you can refuse and make him apply through court for set contact arrangements covering foreign trips.

If the mortgage is in both names he does have to pay his half. It's half his debt.

It’s half his debt yes. But hesitant gave to pay it. From a mortgage company perspective it’s joint and several - meaning both are 100% responsibille- ie if he doesn’t pay they simply expect op to pay ( and vice versa). If no one pays then ultimately it would be repossessed. And as he’s not living there op has sole beneficial use and he can argue he’s owed occupational rent

in reality you need to press on with divorce and importantly financial settlement so you can cut financial ties and resolve the house situation

Hesitant = doesn’t have to

Actually if both parents have PR then they both don't need to agree to foreign travel. Each parent is entitled to take the child on holiday for up to 28 days I believe

Hello,
I am also in Scotland and separated.
firstly, if you are the resident parent (which you are), you can withhold contact if you have concerns, and he would need to raise a court action for this. I am not sure a court would agree to DC going abroad for three weeks if there had not been more contact beforehand, although they may well deem it reasonable for some holiday contact to occur. I don’t know; they were quite conservative in what they allowed my ex with my son who was going through an autism diagnosis (which my ex did not accept either, what is with these men?).
I would say however, that if you have legal representation, court is very expensive so probably not where you want to start. Mediation is cheaper.
Unfortunately, in the Scottish system though, if your ex won’t start with the process of agreeing the Minute of Separation, you are somewhat screwed with proceeding to divorce because you need to have the finances and childcare arrangements sorted prior to divorce. (Ten years after separation, I am not divorced, I am waiting now until DS is sixteen and the childcare arrangements don’t matter as I simply cannot afford any more money on this; I could start a long polemic on why I think the law is flawed here). We did get the financial agreement done as part of the court process, though, so we are financially separated. Ideally, you would get both done, though, so you can actually divorce.
As others have said, I think you need a solicitor and especially one who has some experience of international child arrangements.

Not correct. The resident parent can take the child abroad for up to 28 days. The non-resident parent needs the consent of the other parent. You are asked to send any court orders or residency agreements for DC when you apply for their passport.

You said he contributes to the mortgage and bills and pays maintenance. He seems to have missed 2 months of maintenance. Its not clear if he slipped mortgage and bills. But he hasn’t not gotten away with zero contribution.

Generally speaking most people either receive contributions for mortgage and bills or maintenance, not both. He is right you do need to start being more independent. Eventually the house will be sold and the equity split. You will get child maintenance to supplement your income and might qualify for benefits. This is what you will have to live off. And in Scotland you won’t get a huge % of equity like in England.

It is time to become more realistic. The courts won’t get you a better deal in Scotland. If you want that you need to negotiate. That will be easier if he has a good relationship with his children and there is less conflict. If you stir up acrimony and he doesn’t see his children - expect to get the bare minimum. And if he is abroad you will have a tricky enforcement process.

This is shit but it is your reality.

in the meantime, have you claimed benefits to supplement your income? If you earn 25k a year then you should be entitled to additional income.

In terms of the finances, it’s basically a 50/50 split of assets and debts in Scotland for the duration of the marriage.

[Edited to add: you can have a private agreement for child maintenance (in addition to, or separate from CMS, if he would be negotiate the separation agreement with this, but if he doesn’t pay this, you need to go to court to get it enforced. Otherwise, it’s CMS and as he is abroad, then you are into trying to get it enforced through the agency that does this, whose name I forget.

i would honestly be taking advice on how to get him off the mortgage and what to do with the marital home first and foremost so you can be financially independent.

No he doesn't because currently she is the only resident. Yes the mortgage co could come after him if she fails to pay, and yes it would affect his credit rating, but she can't force him to pay without a court order.

OP doesnt seem to have any orders though, unless I missed that bit, the divorce isnt finalised yet

OP needs proper financial and legal advice, in family law

But as another poster says, children are not pay per view

I would be really worried about someone this obstructive taking the children abroad given he lives there too

If he lives in Europe you might even struggle to enforce CMS as it's a different court system

You would therefore be left with nothing

No, and the problem is that as resident parent, she cannot apply for a residency order as residency is not contested. It would be in the separation agreement, which she doesn’t have either. However, this still does not mean that her ex can take DC abroad without her consent. It does mean that she has nothing to show the border people that she is the resident parent though if she wants to travel. My way around that was to get a letter from ex saying he consented to my travel with the details. But if the ex does not give that, you are screwed for taking DC out of the country.
I or DC have always been stopped and asked questions at passport control. It is/was my ironic observation that DS’s dad may not have been stopped most likely as they have the same surname (especially if going to his home country, also in Europe).
But I agree, I would not allow overseas contact in the circumstances described in the OP. Fortunately, my ex has never requested it, for reasons mainly to do with the limited contact order made in court. As it stands, now DS is older and things have improved, including ex’s understanding of DS’s needs, I would be fine with short trips, but not three weeks and I don’t think DS would agree to this either!

And I also agree that the OP needs proper legal advice from an experienced family lawyer.
She has my utmost sympathy, though, because none of that comes cheap.