13 Oct 2014

Child Aliment

Child Aliment

Leah Bowman, Senior Solicitor, looks at child aliment in situations where parents have separated or divorced.

Leah Bowman, Senior Solicitor, looks at child aliment in situations where parents have separated or divorced.

When does the legal obligation of aliment to a child cease?

Many parents may joke that their financial tie to their children never ends, and that their child continues to spend their money, even when well into adulthood. However, a large number of parents are not actually aware of when their legal obligation to aliment their child ceases.  A commonly held misconception is that a parent’s legal obligation to aliment their child ends when that child reaches the age of legal capacity which is 16 years in Scotland.  In some situations this may well be true, but it is not always the case, and parents should be aware that the alimentary obligation can continue for quite some time and certainly well beyond what would normally be regarded as childhood.  In a situation where the mother, father and child all remain under the same roof, the issue of child aliment very rarely goes beyond the four walls of the home. However, where the mother and father have separated, the issue of child aliment can become a 'hot topic'. 

The Child Maintenance Service ('The CMS')

Where a child is under the age of 16 years and both of the parents and the child live in the United Kingdom, the CMS have exclusive jurisdiction in dealing with the issue of child aliment.  The CMS will continue to have jurisdiction to deal with matters until the child is aged 20 years if that child is (a) in full-time education, not higher than A-level equivalent, or (b) that child is living with a parent who has registered for Child Benefit for the child.  The CMS have at their disposal considerable powers of enforcement in the event of non-payment, including deducting money from a parent’s earnings or benefits, removing money from a bank or building society account or taking court action, which can include imprisonment.  Therefore, it is paramount that the parent paying realises that their obligation to pay aliment via The CMS may well continue beyond their child’s 16th birthday and advice should really be sought prior to ceasing paying child aliment.

The Family Law (Scotland) Act 1985 ('The 1985 Act')

In the situation where The CMS no longer has (or never did have) jurisdiction, it does not necessarily mean that the obligation to aliment the child terminates or never existed.  In terms of Section 1 of the 1985 Act, a father or mother has an obligation to aliment their child until “(a) they reach the age of 18 years or (b) are over that age and under the age of 25 years and reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation”.  

This Section of the 1985 Act is particularly relevant this month, as within the next couple of weeks, many school leavers will embark upon their tertiary education.  Undoubtedly, discussions will be taking place as to how the new student will be able to support themselves when tackling the challenge of further education.  With costs of living increasing and part-time jobs being relatively scarce, a huge part of this support is likely to come from the new student’s parents.  The vast majority of families will be able to agree a level of financial support privately.  However, for the small number of families where this is not possible, matters can ultimately end up before a court for a determination.  It is worth noting that a determination before a court in this type of situation is rare, and the occasions where this is more likely to occur is where The CMS do not have jurisdiction or where The CMS were previously involved in collecting payments.

Unlike the situation where The CMS are involved, there is no exact formula for calculating the level of aliment payable if it is sought under the 1985 Act.  If a court were asked to determine the level of aliment that should be paid, it will have regard to the needs, resources and earning capacities of all of the parties, and generally to all of the circumstances of the case. Needs and resources mean those present at the time of the proceedings and those which are foreseeable. The ‘needs’ also depend on the social position of the parties, and the standard of living that they enjoyed whilst living together.  

As can be seen, it is not always as simple and straightforward that the legal obligation for a parent to aliment their child ceases at the age of legal capacity.

Leah Bowman, Senior Solicitor

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