Who is legally responsible for maintaining children?
A woman who has a child born before 2nd December 2016 and who is not married has sole parental responsibility for her child. This means that only she can make decisions about the child. However, the father can apply to the court for parental responsibility. Alternatively, both parents can sign a parental responsibility agreement and file it at the Judicial Greffe free of charge.
A father may wish his name to be put on the child’s birth certificate, but this is only possible if the mother agrees. The mother may put the name of the child’s father on the child’s birth certificate but only if the father agrees and he must fill out an application form and sign the register.
A father whose child is born on or after 2nd December 2016 and is named on their birth certificate automatically has joint Parental Responsibility.
A man whose name is on the child’s birth certificate may find he is asked for maintenance payments to help look after the child.
An unmarried mother may not apply for spousal maintenance for herself.
Voluntary maintenance payments
A parent may voluntarily give the other parent money to help maintain the child.
Voluntary payments cannot be enforced if they stop paying.
Tax relief cannot be claimed on voluntary payments.
Legally binding agreements
Only legally binding agreements are enforceable through Petty Debts Court and are accepted by Income Tax for tax relief.
If parties are in agreement, they can write a letter stating how much is paid to who, how often, signed by both parties and witness by a lawyer or notary public.
If parties cannot agree and refuse or fail to mediate, the only option left is to apply for a Court order.
Obtaining an Order for Maintenance
Either parent or a person with a Residence Order can apply to the Family Division, Judicial Greffe, for a Financial Provision Order. The Court will then make a declaration as to paternity and in most cases refer the assessment of maintenance to the Judicial Greffier.
A Financial Provision Order covers the periodical payment of maintenance for children only. Lump-sum and property transfer orders may also be sought.
If the father disputes paternity
If the alleged father disputes paternity, the mother will need to produce evidence, for example, his name as father on the birth certificate or a DNA test result. He cannot prevent the Court from making an order by taking no part in the proceedings.
The Court must be convinced of the paternity of the child or the order will fail.
In cases where the man has untruthfully declared fatherhood by having his name put on the child’s birth certificate, it is unlikely that the Court would accept that he is not indeed the father but DNA testing could help him prove his case.
How the Court decides how much maintenance
Previously, Jersey Family Court followed UK guidelines when considering how much maintenance should be paid. This has recently changed and there is now a new approach on this. Currently, the court will now have to take into consideration the following checklist when potentially making a child maintenance order:
- The financial needs and responsibilities of both the child and the parties
- The income, assets and other financial resources of the parents and of the child
- Any mental or physical disability of the child and in which manor the child was behaving, was expected to be educated or trained.
After analysing the above factors, together with the costs of providing for the child and the standard cost of living for the non resident parent, a reasonable figure can be determined by the court based on the full circumstances of each case. Normally after an agreement is made, child maintenance would usually be paid until the child is 17 years of age. However, this can be extended but should not extend beyond when the child turns 18 years old, unless the child is still in further full-time education. There can also be special cases where the child has special needs due to a physical disability.
To align with inflation, there is usually an annual increase on the anniversary of the order. This can be controversial as of course not all salaries will increase with the cost of living.
The amount of maintenance is a contribution towards the upkeep of the child and would not be expected to support the child entirely. Maintenance is not intended to support the other parent of the child.
How payments are made
A maintenance order can specify that payments are made direct to the other parent. It is also possible to request payments to be made to the Viscount’s Department for collection.
If the other parent does not pay
The payee can enforce a legally binding agreement or court order at the Petty Debts Court. Under the Maintenance Orders (Enforcement) (Jersey) Law 1999 as amended, the Royal Court or the Petty Debts Court can authorize an arrest on the wages of the payer. In cases where the payer has regularly failed to meet their payment obligations, the court can order an ongoing arrest so the payee does not need to keep going back to court.
If the other parent leaves Jersey
It is possible to apply for and enforce maintenance orders against someone living outside of Jersey by making an application to the Royal Court. Legal advice should be taken on the process.
Tracing the other parent
If the other parent’s whereabouts are unknown, it may be possible to trace them by using a private detective agency. A legal firm who intend to bring a maintenance order may be able to obtain the address from the Clerk of the Court nearest to the last known address.
Changing a maintenance order
An order for the maintenance of a child normally lasts until the child reaches the age of sixteen or ceases full-time education.
If the circumstances of the parties to the order change, they may be entitled to apply to the Court to vary the order. For example, the payer may have lost their job. If either of the parties marries, maintenance should continue to be paid unless and until the order has been changed.
Until there has been a formal variance of the order, the existing order is legally binding regardless of any change of circumstances and arrears can be pursued through the Petty Debts Court.
Income Tax allowances for children can be divided between the parties or allocated in full to the party who would benefit most from it. If parties cannot decide, this can be part of mediation negotiations.