When do I need to support my children after separation?

With the school year now ended, many young people will be thinking about heading off to college or university or getting jobs, and it can be a daunting time for them financially.

Can they rely on financial support from their parents or do they need to stand on their two feet?

The answer to this question differs throughout the world, and the position is different even between England and Scotland.

The Legal Obligation

In Scotland, there is a legal obligation on parents to financially support their children up to the age of 18, or 25 if they are “reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or a trade, profession or vocation.” (Section 1(5) of the Family Law (Scotland) Act 1985). This would include college courses, university degrees, postgraduate qualifications, and apprenticeships.

How it is claimed

This is regulated differently depending on whether the children are under 16, or 20 and in full-time non-advanced education such as secondary school. For ease of reference I will refer to the younger category as “school-age children”), and the older as “children in further education or training”.

The liability for school-age children

It is common knowledge that the Child Maintenance Service regulates the amount of maintenance payable when children are still at school, or in non-advanced education such as some college courses and their parents are separated. The parents must be separated and one parent, known as the “resident parent”, must have a greater share of the care of the children than the other parent, known as the “non-resident parent”.

There is a strict formula and complex but strict criteria both to determine whether there is a liability by one parent to the other and, where there is, the extent of that liability.

The factors taken into account are the non-resident parent’s gross weekly income and the number of nights the child spends with them over a year. The needs of the child, and the income of the parent with care, are irrelevant. This means that the formula is easy to apply but with the possibility of creating unfair results. The Child Maintenance Service can also assist in cases where the non-resident parent is uncooperative and can collect the funds too.

Read my colleague Grant Hassan’s earlier blog examining child maintenance.

The liability for children in further education or training

At this stage, any claim for financial support must be made by the child against one or both of their parents and needs to be raised in court. The Child Maintenance Service is no longer involved in financial support. A claim can be made whether or not the parents are separated and the funds directed to the child rather than to the parent.

Up to this stage, the amount of maintenance is likely to be calculated by the formula provided by the Child Maintenance Service or otherwise agreed between the parents based on the paying parent’s income. It is irrelevant how much it costs to meet the needs of the child. Once the Child Maintenance Service is finished dealing with maintenance, the way the amount payable is determined is different: the needs and resources of both the child and the parent are examined. This makes matters more uncertain as there is no longer any straightforward formula to determine the amount payable and the decision is based on subjective considerations.

The child who is about to undertake further study or training would need to determine they require support, which is not too difficult to do. They would need to calculate their tuition fees, accommodation, food, living expenses and any income they get from any sources such as student loans, bursaries or part-time employment etc. The shortfall between the two would be the “need”. The question then for that child’s parents is whether the need is reasonable and whether they have the resources to meet the full extent of the need. The Court can be asked to decide if an agreement is not reached between the parties, and will scrutinise all parties’ needs, resources and earning capacities, as well as the whole circumstances of the case. For example, it could be relevant whether the child could be accommodated at home instead of the expense of rented accommodation.

Advice

For the majority of families, the issue of financial support is talked about well in advance of the study period beginning and the young person will be involved in the discussions about their options without the need for any legal action. However, where parents are separated, decisions for a young person’s future studying or training can be a time when disagreements can occur and tensions may run high, especially because it will often signify the end of the period during which one parent will be receiving child maintenance from the other. The resident parent may even assume that this payment to them should continue if they are supporting their child directly, especially if the child remains living at home while studying. This is not the case: they cease to have any right to receive money from the other parent.

It is sensible to talk about financial matters in advance of decisions on further education so there are no nasty surprises further down the line. In the event of any potential dispute then it is wise to seek advice at an early stage from a family lawyer.

Agreement can be reached by sensible negotiation or with the assistance of mediation, which is likely to be a better experience for everyone and avoid the need for a contentious court case.