Child Maintenance

Please advise
DP has court order for child maintenance to be paid to wife. Wife says this is payable regardless of where the children live with him or with her. He disagrees. She refuses to accept non-payment of child maintenance if children decide to live with him. So far - children have spent 1 year with him and then 18mths with her, she took him to court for arrears, court decided that he did not have to pay the arrears for the year that the children lived with him but they awarded her costs, so he had to pay her legal fees. Court ordered that they go to mediation to agree any changes to maintenance, this is impossible she will not change her mind and she has a court order saying it is payable. 1 child very unhappy as he wants to live with his Dad. Dad can't afford to pay maintenance to wife and also maintain child. So catch 22 situation. DP has decided to seek divorce and wife will contest the terms of settlement so it will not be a consent divorce. Can someone advise as to the legality of child maintenance being payable to respondant if the child wishes to live with the applicant.

A Court order can be varied in the event of a change of circumstances. I would have said the correct course would be to apply for a variation, not simply to discontinue payments. There are risks in this, in that the Court will review the whole situation afresh, so that it is possible, for example, to apply for a reduction and for the Court to order an increase. Legal advice should be sought.

Surely logic would tell you that you only pay maintenance if the child is actually being maintained. If the child is NOT living with the mother, then she should not expect to be paid maintenance. Is there any case in law that supports this view ?

Dun,

If the child comes to live with the father full time then he should no longer have to pay child support.

Mike is just pointing out that once the child has moved in you have to apply for the court order to be varied. It may take 2 or 3 months for variation hearing to take place but they can (i believe) backdate their change to the order to take effect from the date you applied.

Its your choice whether to stop paying during these 3 months, strictly the court order is still in place but it is understandable that some people would choose to stop paying. If you stop she could ask court to enforce the order - but this process will take some time and in the meantime your variation hearing should take place and clear everything up. There is a risk that the enforcement process moves fastest and then you will have to deal with the possible consequences.

The key thing is to be very clear with your evidence that the child is indeed staying full time with the father. Don't leave any room for doubt in the judges mind that this is the case.

Precisely. I entirely agree. All I am saying is that I think you need to go to Court, explain the changed circumstances, and ask the Court to discharge the order, for the reasons you say. See a lawyer. I would expect him to write to the wife asking for her agreement to a discharge. If she agrees it can all be done by a straightforward application and you don't have to go to Court.

Thanks for the feedback. The child wants to live with his father, the mother said - fine go ahead - as long as partner continues to pay the child maintenance to her, the child can live anywhere he wishes. Partner's solicitor has already written to wife requesting that if the child lives with the father that she agree to not being paid the maintenance. She has refused. She expects to be paid regardless of where the child resides as there is a court order in place for the maintenance to be paid to her. Partner is going to court to ask the judge to determine if maintenance should be paid if the child lives with him. Wife is stalling the court process and both are running up legal fees. Partner wants clarity as he does not want to subject child to being torn between the 2 parents as to where he lives because the parents are arguing over the maintenance issue. He wants to protect the child as best he can from any parental disagreements. He is looking for an agreement for the FUTURE so the child is absolutely free to choose to live with whomever he wishes. Of course partner will continue to pay maintenance while the child still resides with his mother.