When can we stop paying Child support? Urgent!!!!

Think we could usefully focus on a couple of words here. First is "child". The law is notoriously vague. The best you will get is s78(6) Social Security Administration Act 1992: "a child includes a person who has attained the age of 16 but not the age of 19..."

s29 Matrimonial Causes Act 1973 says no financial provision Order in favour of a child shall be made in favour of a child who has attained the age of 18. Nothing about what Order shall be made re a child who hasn't yet reached that age. And see later...

Now let's have a look at that Order. Does it really say "... 17 or full-time education" only? Not "full-time secondary (or tertiary) education"? OMG, how lax can these things get? Whoever drafted that should be shot. The obvious construction, given the context of "age 17", is "secondary" education. But it would take a Court hearing to explore that point, no guarantee that the Judge would agree. Others have already mentioned the likely costs of an application and hearing. Nuff said.

But is what she is doing now "full-time education"? It sounds more like vocational training, and part-time at that. Back to s29 MCA again: s29(3) disapplies the age limit in the case of a child who is receiving instruction at an educational establishment, or receiving vocational training, whether or not she is also in gainful employment. So that seems to shoot us down. Oh, and unhelpfully, "child" is not defined in the Act with any clarity. s52(1) tries to, but is incomplete. Your best bet is to rely on the words "ful-time". If it's not a f/t course, the liability is in my view ended, but it's a gamble.

In a nutshell, we seem to be on the hook still unless he wants to take a chance applying for a "variation" to conclude or reduce the maintenance liability. But unless the order says he has to pay the money to the ex "for the benefit of the child", I suggest he try paying it direct to the daughter herself. Sorry this was so long winded.

Will C

Kitten,

It's as clear as mud and you are right there is a lot of conflicting information.It took me some time to get my head around it.

In England&Wales there are two bits of legislation for maintenance for over 18s in education or training. Under schedule 1 Children Act 1989 children may apply in their own right for maintenance from both parents if their parents are separated and there was no periodic payments order under s23/27 Matrimonial Causes Act 1973 in force in respect of them immediately before their 16th birthday. If there is such a periodic payment order then usually it's in favour of the resident parent for the benefit of the 'child.'

Hi, thanks to all who replied.....We have now spoken to 2 solicitors, The ist replied to us as follows: Without a shadow of a doubt you should apply for a downward variation of the maintenance order. The circumstances are now entirely different from when the order was made. I have no doubt whatsoever that after looking at all the circumstances the court will reduce maintenance to a nominal amount of perhaps five pounds a year. Applications should be to your local Family Proceedings (Magistrates) Court rather than the County Court.



Regards
Legal Consultant
I have deleted his name and also his company.

The 2nd was the solicitor that draughted the document and her advice was unbelievable....according to her it does not matter if the daughter stayed at the b/friends full time and that the mother gives her no money...reasoning is that daughter could fall out with b/friend and have to go back home and mother can keep all the money as it is to keep a roof over her head. Also if we persue it the mother could ask for more money due to inflation. She recommends that we shut up and pay up as it will cost us thousands and could end up paying the ex more. I don't understand this...where is the justice? The ex commits adultery twice and leaves because of the 2nd and holds all the cards? So what the hell were the lawyers doing during my divorce due to my exs adultery? It seems that they all hold a different view and no-one knows what the hell is right or wrong!! Do I need to speak to a third solicitor? Oh sorry forgot to add it is vocational and if she does 12hrs a week it is classed as full-time. But it is classed as educational for maintenance purposes apparently!? Sorry about long rant

To be fair many family solicitors would like to see clear statutory guidance to determine financial/property settlements on divorce. In the meantime everyone is stuck with the system and needs to work within it the best they can.

I believe the difficulty is both opinions above are valid, although I'm a little skeptical about there being no doubt what the Court would rule. So unless, as Will suggested, your husband can try paying it direct to the daughter because the order is not worded that he has to pay the money to the ex "for the benefit of the child" the options are;

(i) apply for a hearing in the hope that the other party might be brought to the negotiating table and compromise to avoid their costs, knowing that if the gamble doesn't pay off it could go either way and your husband might incur £12-15k costs

or

(ii)continue paying £250/m in the hope the daughter doesn't continue eduction/training ad infinitum.

Ooh, this is hotting up nicely. Fiona, spot on advice as usual except that I would be blown away by costs running to that level for a simple application to vary. They shouldn't go above £3500-5000. But that's still a lot of money.

But the suggestion that somehow the solicitors should (or could!) have done something about "the ex's adultery" is way off the mark. Solicitors can only work within the law. The law only recognises "fault" in divorce by making the Respondent pay the Petitioner's divorce costs - not her ancillary relief costs.

In ancillary relief "behaviour" can be taken into account (see s25(2) Matrimonial Causes Act 1973) but it will NOT penalise behaviour unless it has the "gasp2 factor. It has to have directly measurable and far-reaching financial effects to make it worthy of note.

The all-too frequent human failings of infidelity are off the radar on that scale, sorry.

But how can you expect solicitors to agree on the law? If they did, no-one's case would ever reach the court. No, there is room for doubt and interpretation of evidence and its relevance. Only a Judge can make a ruling that is binding. The first solicitor was IMHO too optimistic, for what it's worth.

Some hard-nosed negotiation backed by the threat of an application to court, with its attendant costs, should give best chance of success.

Will C

I think I must have got mixed up with another thread and thought £12-15k had been quoted by sol.

Agreed it would be extortionate, even by English standards!

Oh, just to make this more of a joke....We have just read the court papers again and it states "petitioner to pay the Petitioner the sum of £250 per month". So does that mean my husband should have been paying himself all this time? Also the ex walked away with £68000 in 2002 from the sale of the house so that she could buy herself a smaller place for her and the daughter, which at the time would have left her with a small mortgage. She has since spent the said amount on her boyfriends with holidays to Italy etc and lives in rented accommodation.