27 Living Together and Your Rights if You Separate
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2. Why is living together different from being married?
4. Making a ´living together agreement´
5. When you are living together
6. If you or your partner dies
7. State benefits for people living together
11. Arrangements if you have children
The court expects you and your partner to be able to agree where the children will live ('residence') and how you will arrange to see them ('contact'). If you can do this between you, there is no need for a court order. You should continue to make major decisions about the children together (the law requires this where both parents have parental responsibility), but you can each act on your own if you need to and if you have parental responsibility - for example, if you need to consent to emergency medical treatment. The Department for Constitutional Affairs and the Advice Services Alliance produce helpful leafletsYou can get a Parenting Plan leaflet to help you work out your future arrangements. This and other helpful leaflets about children are available from your solicitor or the Department of Constitutional Affairs - see 'Further help'.
What if we can't agree?
If you cannot decide which one of you the children should live with ('residence'), or how often they should see the parent they don't live with ('contact'), you may need to apply to the court for an order. Before you do this, it is worth seeing whether you can use a mediation service to help you reach an agreement. If mediation isn't suitable for you, or if it doesn't work, you can apply to the court for an order. You do not need a solicitor to act for you but it is probably a good idea to get some legal advice before you start.
The Court Service produces a helpful leaflet about court proceedings and children, called 'Children and the Family Courts'. This is available from the Court Service website. See 'Further help' for details.
The court will try to see if you and your partner can come to an agreement. If you can't agree, the court will make an order. But the court will make an order only if this would be better for the child than not making one. Most cases involving children are settled by agreement at a reasonably early stage. This is generally better for everyone and certainly saves a lot of legal costs.
If contact arrangements are causing problems, it may be helpful to use a Child Contact Centre as a neutral meeting place. Solicitors and courts will have details of your local centre. See 'Further help' for how to contact the National Association of Contact Centres.
What if there are specific issues we can't agree on?
You can apply for a 'specific issue order' if you need the court to decide a single matter, such as where your child should go to school.
Also, the court can make a 'prohibited steps order' to stop one parent doing something that the other parent disagrees with, such as changing the child's surname.
Supporting your children
The Child Support Agency (CSA) is the government body that can make arrangements for maintenance to support your children. But the CSA can deal only with maintenance from a child's parents by blood or by adoption. If you and your partner have had children together (or adopted them), then you can use the CSA.
If your partner is not your children's other parent, then you cannot use the CSA against him or her. You cannot get a court order against your partner either. You will have to pursue the child's actual parent or rely on your partner's goodwill.
How the Child Support Agency works
The rules about child support and the CSA changed in March 2003. If you were assessed under the old rules, the CSA will transfer you to the new system at some point. The information that follows is about the current rules.
If you are getting Income Support or Jobseeker’s Allowance, you must normally use the CSA.
If you are not getting Income Support or Jobseeker’s Allowance, you can make an agreement about maintenance with your partner. This can be made into a court order if you both agree. Alternatively, you can use the CSA if it has jurisdiction.
The CSA has jurisdiction if all of the following applies to you:
- The child is the child (by birth or adoption) of both parents. (This means that stepchildren cannot get support from their step-parents under the CSA.)
- The parent with care, the non-resident parent and the child all normally live in the UK. (This includes people who are living abroad but working for UK employers.)
- The non-resident parent is not living in the same household as the child.
- The child is under 16, or between 16 and 19 and in full-time, ‘non-advanced’ education (a course that is not higher than A-level standard).
What happens if the Child Support Agency does not have jurisdiction?
You can use the court if the CSA does not have jurisdiction, for example where the non-resident parent lives abroad. You can also get an order from the court:
- for school fees;
- for the particular needs of a disabled child;
- for a 'top-up' order if the maintenance that the CSA can order reaches a ceiling, which is set very high (see 'Is there a limit to what the non-resident parent has to pay?', right); or
- to vary an existing order.
If your child's father or mother lives abroad, then there are ways of enforcing a maintenance order made in UK courts in some other countries. You will need a solicitor's help to do this.
How is Child Support Agency maintenance worked out?
The old rules (before March 2003) had a complicated formula using both parents' incomes. The new rules are simpler. They are based on the non-resident parent's net (after-tax) earnings.
Is there a limit to what the non- resident parent has to pay?
Yes. From their net (after tax) income, the non-resident parent can take off all pension contributions (but not housing costs) and an allowance for any new children or stepchildren. He or she will then pay:
- 15 per cent of their remaining income for one child;
- 20 per cent for two children; or
- 25 per cent for three or more children.
The amount of child support paid for the children also depends on the number of nights they spend with each parent. If you have children who live with you in a second family, this will be taken into account when child support is calculated.
The CSA will be able to calculate maintenance on the net income of the non-resident parent only up to £2,000 a week. If their income is higher than this, you may be able to get a top-up order from the court.
How do I apply for maintenance?
If you are receiving benefit, Jobcentre Plus staff will normally help you fill in an application form. If you are not receiving benefit but you want to use the CSA, you can get an application form from the CSA (see 'Further help'). After you have returned the completed form, the CSA will write to your partner with another form that they have to fill in and return within four weeks. The CSA will then make a maintenance assessment and tell you both how much it should be. If you are receiving Income Support or Jobseeker's Allowance, you can keep up to £10 a week from the maintenance paid by your ex-partner in addition to your benefit payments.
If I don't have to use the Child Support Agency, what can I do?
You can make an agreement with your partner by working out what you think is a fair figure. Your solicitor should be able to tell you how much child support would be payable if you used the CSA instead, but this may not give you enough money for your family's situation. If you agree a figure with your partner, you can ask the court to include this amount in a court order under the Children Act 1989.
What if we can't agree?
You will have to use the CSA and apply through them. Neither of you will have any say in how much should be paid. If the CSA does not apply to you (for example, if the child's other parents lives abroad), then you will need to apply to the court.
13. Sorting out other items you own
15. Terms used in matters to do with living together
This leaflet is published by the Legal Service Commission (LSC). It was written in association with Imogen Clout, a solicitor specialising in family law.
Latest version: August 2006
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