LEGAL EAGLE: I’ve just separated - can I get maintenance for my children?

Me and my husband have recently separated and he has moved out. We have two children. My son is 10 and my daughter is 19 and at university. Can I get maintenance?

Tuesday, 28th December 2021, 12:00 am
The court will look to matters which include the financial needs of your daughter.

Me and my husband have recently separated and he has moved out. We have two children. My son is ten and my daughter is nineteen and at university. Can I get maintenance?

The court can only make maintenance orders for children under very limited circumstances set out in section 23 Matrimonial Causes Act 1973 which deals with Periodical Payment Orders (PPO) for children. It is best to agree maintenance. The agreement can then be formalised in a consent order and approved by the court.

If you are unable to reach an agreement, as your son is under sixteen you can pursue a claim using the Child Maintenance Service (CMS) as your husband is the biological non-resident father. CMS will calculate the amount owed by working out a percentage of your husband’s gross income which will vary dependent on his wage. Your financial resources will be ignored. This amount is then reduced by 1/7 for each night the child stays. A £20.00 application fee will be applied along with a 4% collection fee and a 20% maintenance payment fee. Unless your husband is a full-time student, prisoner, a child himself or earns over £3,000.00 per week CMS can be used for maintenance as a last resort. CMS usually lasts until the child leaves college at 18.

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You cannot claim maintenance through the CMS for your daughter as although she is under 20 years old, she is in advanced education and so falls under the jurisdiction of the court. The amount will be informed by the relevant CMS calculation.

The court has a wide discretion and so it is best to come to an agreement. The court will take various factors into account to inform their decision as to whether they will make a (PPO). Your daughter’s welfare will be the court’s first consideration.

The court then looks to matters which include:

financial needs of your daughter;

her resources;

any physical and mental disability; and

how you expected her to be educated.

Finally, the court will look at factors relating to you and your husband in terms of the following factors:

income/earning capacity;

financial needs and responsibilities;

standard of living;

age and duration of the marriage;

physical and mental disabilities;

welfare contributions;

conduct; and

Value of benefits being lost on ending the marriage.

The court will make a finding on each fact to demonstrate they have considered each in turn before applying the objective of a fair outcome to inform their approach.