Telephone
Helpline
Discussions
& Chats
Case
Histories
Available
Downloads

You are not logged in.

Facebook Twitter Google Digg Reddit LinkedIn Pinterest StumbleUpon Email

In order to post messages to this discussion board click here to login/register

Back

Home Register

pollie

Joined:
Posts:
Location:

Message

Subject: Recover of child maintenance in small claims court ? Posted: Thursday, December 5, 2013 - 12:54:16

Hi Does anyone know if arrears of child maintenance due under a properly executed Separation Agreement prior to divorce, can be recovered via the small claims court ? A number of the CSA\'s rules prevent them from recovering this sum. They appear not to be covered by the ancillary releif process as it\'s child maintenance. Thanks for any thoughts pollie

Replies

sometimesitdoesn'twork

Username: sometimesitdoesn'twork
Joined:
Posts:
Location:

Message

Posted: Thursday, December 5, 2013 - 12:55:03

In a nut shell, no. First of all courts normally have no powers to make an order for CM. If it was an exception to the rule (ie step children, over 18s or one parent living abroad) a court order would be required to enforce and only the family courts can issue one in a family case. The CSA only have the authority to collect monies from the time of application when they first contact the non resident parent. I think you can only hope a judge might use his/her discretion and award you more ancillary relief than they would have otherwise.

pollie

Username: pollie
Joined:
Posts:
Location:

Message

Posted: Thursday, December 5, 2013 - 12:54:16

Hi Thanks for your reply. It was intimated to me by a family solicitor a long time ago before I was really thinking about it, that I may be able to recover it as the Separation Agreement was in fact a \'Contract\'. You feel this is not the case ? The problem is his income is not assessed as \'Income\' by the CSA.. Many thanks pollie

sometimesitdoesn'twork

Username: sometimesitdoesn'twork
Joined:
Posts:
Location:

Message

Posted: Thursday, December 5, 2013 - 12:55:03

How long ago did the solicitor say that? If the court considers that it would be fair to hold both parties to an agreement the court may turn the agreement into a court order, and enforce it. The problem is the courts no longer have the jurisdiction over child maintenance so there is no order that can be enforced.

pollie

Username: pollie
Joined:
Posts:
Location:

Message

Posted: Thursday, December 5, 2013 - 12:54:16

Hi Nearly 2 years ago. He meant I could go to the \'Small Claims Court\' rather than Family Court, because it was a contract. pollie

sometimesitdoesn'twork

Username: sometimesitdoesn'twork
Joined:
Posts:
Location:

Message

Posted: Thursday, December 5, 2013 - 12:55:03

Separation agreements used to be referred to as contracts and were treated as family cases. Simes is the best person to comment on contract law but my understanding is the small claims court cannot entertain family proceedings because they are trumped by family courts. The same applies with property, when a house is owned jointly it is assumed each party owns 50%, or if there is only one name that person owns all the house under property law. Family law trumps property law so courts can share the FMH equity in different proportions on divorce. If the couple weren\'t married sharing the house would be subject to property law. Only if a family court has made an order can it be enforced. As I said, unfortunately the family court doesn\'t usually have the authority to impose child maintenance.

EnglishRose

Username: EnglishRose
Joined:
Posts:
Location:

Message

Posted: Thursday, December 5, 2013 - 12:54:15

But you can start it surely. You can go on line today at www.courtservice.gov.uk under moneyclaims online with a credit card and sue and then a machine will send out a court claim and that alone often gets the other party to claim. Just fill on the form sum owed under agreement dated XYZ. If the other party does not defend it you can apply on line for a judgment and then send in bailiffs to recover goods to that value. IF of course it is the law that family law debts cannot be enforced in the normal courts then his lawyers will cotton on to that and stop it but it\'s worth a try for a smallish fee to the court.

sometimesitdoesn'twork

Username: sometimesitdoesn'twork
Joined:
Posts:
Location:

Message

Posted: Thursday, December 5, 2013 - 12:55:03

A family law debt is enforced in a normal court by registering the order with the magistrates court or by filing an affidavit verifying the amount due under the order (Rule 7.1 Family Proceeding Rules) There is no order, that is the problem.

EnglishRose

Username: EnglishRose
Joined:
Posts:
Location:

Message

Posted: Thursday, December 5, 2013 - 12:54:15

But you will not be stopped on that web site starting a case and then your ex gets the court claim and might well pay up. In other words it\'s simple to do it and worth a go.
You need to login / register to post a reply.