29 November 2017

Myth three: Cohabitation rights – We are separated with two children, my ex is wealthy and I can force him to pay

Vanessa Duff (Mitchell)
Senior Associate | Hong Kong

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My partner and I separated and we have two children; he is pretty wealthy but doesn't earn very much now, we have been through the CSA to no avail, but is there anything else I can do?

There are several things you can do:

Reviewing your assessment

You may be able to do something to review your current assessment through the Child Maintenance System (CMS), formerly the CSA.

Whilst new rules make it difficult for CMS calculations to be challenged, there may be grounds for a variation. The CMS can deem income at 8% to arise on certain assets which will result in an assessment and a maintenance amount being payable. A solicitor can advise you about the appeal process (which should be done within one month of the date of your decision letter) and the Citizens Advice Bureau also has some helpful guidance.

Consider making an application under Schedule 1 Children Act 1989

You can make various financial claims for your children under this Act – there is no requirement to have been married. These include claims for child maintenance (in some limited circumstances), capital payments and, where appropriate, orders in respect of property and legal costs.

Child maintenance claims through the court

The court cannot make orders for child maintenance in place of the CMS, but it does have that power to make orders for child maintenance in some circumstances, including:

  • where there has been a maximum income assessment by the CMS (where the other parent earns more than £3,000 per week gross) – in that case, a 'top up' order can be made;
  • where the payments are sought to meet educational or vocational expenses (a 'school fees order'); or
  • where a child has a disability and a court order is needed to meet related expenses.

Other financial orders you might be able to claim through the court

Orders for housing are usually settled or transferred for the benefit of the children and go back to the other parent once the children reach adulthood. You can also make a lump sum claim for capital for the children, to pay for various items (a car, furnishings, equipment etc).

Whether or not your claims would be successful would depend on a number of factors including your ex-partner's financial position. A solicitor can advise you on whether you should make a claim.

Cohabitation agreements

Click here for more information about family law and cohabitation questions.

Get in touch

If you would like to speak to us about child maintenance claims or any other matter, please get in touch on the number below:

t +44 20 7597 6364

Vanessa Duff (Mitchell) Senior Associate | Hong Kong

Category: Article

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