Question about maintenance

[vieniqua]

I have a question about when maintenance is paid until?

Is it when the kids are 18? Or is it until they have finished university, even if this is well into their 20's?

Also what does the law say, and what is the tendency (ie. to keep paying even if they don't legally have to?)

I am completely clueless, so any answers are gratefully received!

[Mendi]

I must have misunderstood. In my mind, if the SD had 'disowned' her father many years before her request for funding for uni, then unless she was applying to uni as a mature student she must have done this 'disowning' as a child/early teen. Ergo, not really the same as an adult casting off all ties and then asking for money.

I have no idea of what went on between the SD's parents but it's not uncommon for the PWC to poison the child against the NRP and perhaps that night account for a child or young adult 'disowning' the NRP. Though, if I were the NRP in that scenario, I would always want my child to know I was there for him/her so I wouldn't be so happy about not supporting him/her financially.

Of course, it may be that this particular girl is a proper little bitch, but IME such creatures are rarely cast in stone before they reach adulthood. And a child cutting ties with a parent may be under emotional pressure he/she can't deal with as a child/young adult that perhaps they would deal with differently as an adult.

Just my general musings. As I say, she may just be evil in which case, disregard!

[allnewtaketwo]

"Unprovided for by her father" who she disowned . Wonder how much her mother provided for her [her]

I'd call her a lot worse than "crafty little madam". This is an adult were talking about, and she sounds like a nasty conniving grabbing little bitch to be honest

[Petal02]

Crafty little madam disowned her father a number of years ago, I was not involved and don't really know her. She made nasty allegations to the police and social services, caused DH and his family all sorts of trauma. She then decides she wants money but didn't get any. Justice was done. The money we saved will benefit DSS.

[Mendi]

In your case petal, things have worked out well for you as the crafty little madam has gone unprovided for by her father. For anyone else: do look at the unambiguous wording of Para. 2(3) of Sch. 1 Children Act 1989, which provides the basis for a claim for financial provision while at university (or in 'special circumstances').

[Petal02]

Am still not convinced, but don't want to spend all evening going round in circles.

[Mendi]

It does happen petal. Alternatively there is something in the facts of your case that you haven't mentioned.

Either way the wording of Sch 1 quoted above is unambivalent on the point. An adult child can claim.

[Petal02]

I could understand if one party had been badly advised, but for both parties to be given identical advice about the same set of circumstances, in the space of a fortnight, seems strange.

But as I said, if you're a lawyer then you obviously know your stuff, but can't understand why two independent legal firms got it wrong?

[Mendi]

petal02 it does happen in practice. The cases I've cited are examples of just that and they date back to the seventies.

I'll go out on a limb and say I think you and your SD were badly advised. The terms of Sch 1 are quite clear in that a child over 18 absolutely can claim for support through tertiary education,

[Petal02]

Mendi, I don't understand the legal jargon you keep quoting, but DSD's parents were married (until they got divorced when DSD was 13/14). A consent order, expiring at age 18, was arranged at the time of the divorce.

I'm still puzzled though, if its legally possible to sue a divorced father then why doesn't it seem to be happening in practice? Surely DH and his daughter were a fairly text book case of relationship between parent/child breaking down, resulting in no support through Uni.

[Mendi]

Yes Petal02, parents still together cannot be sued because it is assumed that most parents will want to support their children.

The difficulty tends to come when NRPs decide they don't feel like supporting the child any more because their relationship with the PWC (and sometimes the child) has ended. That's why there is law to force such parents to provide financially. Unfortunately some children of unmarried parents will fall within the gap described above - very unfair on those children IMO.

[Mendi]

I am speculating here Petal02 but it is possible that the reason the DSD in your case could not succeed was that:

1. her parents were never married, so
   

1. there would have been no divorce proceedings for her to issue in, and the only option for her would be a claim under Sch. 1 Children Act 1989 AND
   

3.there was a maintenance order in respect of her in force immediately before her 16th birthday, which would bring her within sub-paragraph (3) above meaning that she fell into the legislative gap discussed in the article I linked to above.

That's just my conjecture, mind.

[Petal02]

So are only NRPs vulnerable to legal claims? What about parents in intact families? I never said I was a lawyer, we all talk about our own experiences on this forum, none of us claim to be experts. I still wonder though, that if it were really possible, why more people aren't being sued?

[Mendi]

Paragraph 2 Schedule 1:

Orders for financial relief for persons over eighteen
2

(1) If, on an application by a person who has reached the age of eighteen, it appears to the court?

(a) that the applicant is, will be or (if an order were made under this paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or

(b) that there are special circumstances which justify the making of an order under this paragraph,

the court may make one or both of the orders mentioned in sub-paragraph (2).

(2) The orders are?

(a) an order requiring either or both of the applicant's parents to pay to the applicant such periodical payments, for such term, as may be specified in the order;

(b) an order requiring either or both of the applicant's parents to pay to the applicant such lump sum as may be so specified.

(3) An application may not be made under this paragraph by any person if, immediately before he reached the age of sixteen, a periodical payments order was in force with respect to him.

(4) No order shall be made under this paragraph at a time when the parents of the applicant are living with each other in the same household.

(5) An order under sub-paragraph (2)(a) may be varied or discharged by a subsequent order made on the application of any person by or to whom payments were required to be made under the previous order.

(6) In sub-paragraph (3) ?periodical payments order? means an order made under?

(a) this Schedule;

(b) . . .

(c) section 23 or 27 of the Matrimonial Causes Act 1973;

(d) Part I of the Domestic Proceedings and Magistrates' Courts Act 1978;

[(e) Part 1 or 9 of Schedule 5 to the Civil Partnership Act 2004 (financial relief in the High Court or a county court etc);

(f) Schedule 6 to the 2004 Act (financial relief in the magistrates' courts etc),]

for the making or securing of periodical payments.

(7) The powers conferred by this paragraph shall be exercisable at any time.

(8) Where the court makes an order under this paragraph it may from time to time while that order remains in force make a further such order.

[Mendi]

Petal02, I don't know the facts of your case so can only repeat that this sort of claim is very fact-specific and what applied in your case is not going to apply to all.

You should be very wary of dispensing quasi-legal advice on a forum such as this where people who may have meritorious claims may be dissuaded by your views, which are, however well-intentioned, only views germane to your own case.

As to your lawyer saying that it is never possible for such a claim to succeed, I'm sorry to say that there are bad lawyers out there. The line of authority that I've cited above makes it clear as day that adult children can claim financial provision from parents at university and indeed the same principle is repeated in paragraph 2 of Schedule 1 Children Act 1989.

[Petal02]

Mendi, no I?m not a lawyer. But when DSD sought legal advice (from a lawyer) she was told that she had no case so there was no point in trying; and when we also sought legal advice (also from a lawyer) the advice was quite clear: DH had nothing to worry about as a child can?t sue a parent for Uni support.

I don?t doubt that theoretical comments to the contrary exist, as per the links you?ve included, but in practice it doesn?t work. If it were possible, surely everyone would be trying it? And it?s starting to sound like a parent in a ?together? family couldn?t be sued for Uni support, yet in a separated family a NRP suddenly has a legal obligation to pay?

I?m just curious to know why DSD was told she had no case, when DH had the means to pay, but not the inclination. Please don?t think I?m being obtuse, if you?re a lawyer then you obviously know your stuff, but what you?re saying does appear to be at odds with our experience.

[Mendi]

No, not right. It's nothing to do with spousal maintenance: it is for the child, and hence if the child pursues the claim it will be paid to the child (not the PWC). It's simply that, from a procedural point of view, if the parents were married and there was a maintenance order made in the divorce proceedings, then the means by which the child can sue in her own right is to issue in the old divorce proceedings - re-open them, if you like, but for her own purposes rather than her mother's.

If the parents were not married then the PWC/mother can apply under Sch.1.

For a recent case about maintenance through university where the parents were never married, have a look at http://www.familylawweek.co.uk/site.aspx?i=ed33456 Re N

[purpleroses]

I think you're talking about spousal maintenance, Mendi - so it's possible if there was an order made at the time of a divorce for it to include a clause about supporting adult children through university - or even if it doesn't, if it's still open a student child could get it changed to get some support.

But if there's a clean break divorce, or the parents were never married, then the only compulsory contribution from the NRP is child support (paid to the RP, and which stops when they finish A levels) and thereafter is voluntary, just as it is from the RP. Right?

[Libby10]

DP and his ex agreed a financial order. Her solicitor wanted child maintenance to continue until the SC left full-time university (which seems to be a standard request). DP successfully argued that he had and would always continue to support his children but that he would do this directly when they were at university.

[Mendi]

You can also read this other thread on the same topic: earlier MN thread re maintenance for adult child through university

[Mendi]

You might disagree with me Petal02 but you are still wrong (and, I suspect, you are not a lawyer?). The advice you received may have been the correct advice in your circumstances but it is well established that a child over the age of 18 can sue a parent for maintenance through university. If there was a maintenance order in place before the child reached 18, then the means by which the adult child may apply for maintenance on her own account is to issue in the old divorce proceedings between her parents. Provided both parents are still alive (as in the case of your DH), this is possible. Alternatively, the mother/NRP can issue on behalf of the adult child under Schedule 1 Children Act 1989.

I recently read a thoughtful account of the development of the law in this area, which you might find interesting: Maintenance for adult children.

If you are really interested I'd also suggest you look at the 1976 case of Downing v Downing (Downing intervening) ([1976] Fam. 288), which established that the court absolutely has jurisdiction to hear an application by an adult child for maintenance through university. This was a case where BOTH the parents of the unfortunate child refused to maintain her at university. The following excerpt from the judgment is relevant:

'It is perhaps worthy of mention that an application of this kind would not be a unique instance of a child over 18 taking proceedings against its parents for maintenance. Where a maintenance order has been made under section 23 of the Matrimonial Causes Act 1973 for payment to children and the father falls into arrears, the mother cannot herself take out a judgment summons to enforce the arrears because she is not the payee. If the children are minors, the wife or some other approved person will issue the judgment summons on the children's behalf as next friend, but, if the children are of full age, it would appear necessary for them to bring their own enforcement proceedings. This is the opinion of the editors of Rayden on Divorce, 12th ed. (1974), vol. 1, p. 884, with which I agree. Under section 12 (2) of the Guardianship of Minors Act 1971, where a person who has ceased to be a minor but has not attained the age of 21 has while a minor been the subject of an order for the payment of maintenance, he as well as the parent may apply to the court and the child may ask for an order requiring one or both of the parents to pay maintenance to the child himself. The provisions of section 12 replace section 4 (1) and (3) of the Family Law Reform Act 1969, and by section 6 of the Act of 1969 identical provisions are made in favour of wards of court, who may also in similar circumstances apply for orders against one or both of their parents.'

Some of the statutory provisions referred to in that excerpt have since been repealed, though they are replicated in codified statute that is now in force.

Advice which may have applied to your case is not one-size-fits-all.

[LtEveDallas]

Has anyone known of a parent stop paying the ex maintenance when a child leaves school but to give the portion of maintenance direct to the child who is then going to college

We stopped paying DSD Mum when DSD was 15, and paid DSD direct from then on (I was actually paying her a proportion of it direct long before that, but for my own reasons). She is now at College (will be 18 this year) and we are still paying her direct. I believe that DH will want to stop paying her at 18, but I will probably continue to fund her somewhat - her opportunities for work where she is currently living are limited and I'd rather she concentrated on her college work and hopefully get a good job out of it.

[ladydeedy]

Yes if they do leave...
At the moment one has retaken (with mother's encouragement) a year of sixth form, despite being not very academic, and is about to embark on a 4 year uni course...
We are in a slightly odd place because one DSS lives with us, the other with his mother. So no money changes hands as such, as they are "equal".
What will be interesting is, once the older one leaves uni, if the mother will reciprocate by giving DH a sum of money each month whilst younger DSS completes uni... I wont hold my breath on that one!!

[Petal02]

Maintenance up to the age of 23????? Scary stuff!!! I assume your DH can stop paying if the "child" leaves uni before age 23?

[ladydeedy]

We are in the situation that DH signed a court order and agreed to pay maintenance for his children until they finish "fulltime education" potentially up until age 23 according to the order!

(Clearly I was not with DH at the time otherwise would have advised against such madness although he was pressurised and stressed out at the time...). And the money is to be paid to ex, not to the children. She would never ever agree for it to be paid direct to the child.

Since the divorce and court order, one child has moved to live with us so the agreement with respect to him is no longer valid, although exw is trying to get him to move back with her so that she can claim the money when he goes to uni as he will be "based" with her although living at uni).

My DH earns an average wage, whereas I am the higher earner and therefore when the DSS who lives with us goes on to uni, it is my salary (along with DH's) that will be taken into account when it comes to calculating grants etc.

[Petal02]

You're right Allnew