Child maintenance and the associated financial support is a key issue in many families, but even more so if the parents are divorced, separated or have never lived together.
Parents sometimes wrongly think that financial support of children stops at the age of 16. This may be because once a child reaches 16, a parent can no longer apply to the court for an order residence or contact with the child. As well as this, Child Benefit comes to an end for children at the age of 16, or when they leave education.
However, parents should be aware that under the law in Scotland the obligation for financial child maintenance can continue up to the age of 25.
Financial support of children
The Child Maintenance Service – a UK government agency - can work out how much child support is due in individual cases and can extend the support beyond the age of 16 and up to the age of 20 if a child is education.
While some parents may reach agreement on child support based on their incomes and outgoings, where the Child Maintenance Service (the CMS) is involved, the calculation is based on gross income less pension and the number of nights the child stays with the ‘paying’ parent. Other children who live in the ‘paying’ parent’s household are taken into account. The CMS has detailed rules for the calculation of maintenance.
However, as well as this, under the Family Law (Scotland) Act 1985 there is an obligation to provide such financial support for a child as is reasonable in the circumstances (known as 'aliment'). This is particularly relevant where the child goes on to study at college or university after leaving school.
Financial support when children are studying
In Scotland, where a child goes on to study or train after leaving school, under the Family Law (Scotland) Act 1985 their entitlement to receive financial support from their parents (whether living together or not) can extend beyond the age of 18 and up to the age of 25.
The 1985 Act provides that a “child” is someone under the age of 18 or over and under the age of 25. They have to be “reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation”.
This entitles students to seek financial support from their parents. Sometimes this kind of ‘support’ takes place through providing board and lodgings for the child if they carry on living at home. However, where the child isn’t living at home or where the parents aren’t living together, the child would be entitled to seek financial support from one or both of those parents.
Importantly, it is the child themselves who has the legal right to receive the payment of financial support if they are 18 years of age or older.
Many more children now go on to study at college and university after leaving school, some living at home and some choosing to study outside of travelling distance from the family home. The issue for the financial maintenance of the child where they go on to study at college or university is whether or not it is ‘reasonable and appropriate’ for them to so do.
The financial contributions and social standing of the child or their parents can be taken into account in determining this. For instance, it would be difficult to argue that it would be unreasonable for a child with the appropriate qualifications not to undertake a degree or similar training. Second degrees or post-graduate courses may pose a thornier questions, but it’s clear that each case will turn on the facts and circumstances of the individual.
Where a child has moved on to further or higher education and agreement has not been reached on the financial support of the child, then under the Family Law (Scotland) Act 1985 it is open to the child to raise court proceedings against the parent for such support.
What happens if your child goes to court for financial support while studying?
The needs of the child and the resources they have to meet those needs together with why they are unable to meet those needs would usually be set out as part of a formal request for payment. Resources for meeting those needs will include, for instance, student loans and income from other areas.
The parent from whom the financial support is sought then has the opportunity to demonstrate whether or not they have the resources to meet that need, in full or in part. Factors which will be taken into account will include where the parent lives in a new household with a new partner, including with any children. A new partner’s income is not taken into account directly, but their contribution towards the household expenses would be assumed. It would not be deemed reasonable for a parent to seek to deduct all household costs from their income if their partner is contributing to that.
Behaviour in relation to finances can also be taken into account by the court.The court is entitled to consider the conduct of the parties where it would be “manifestly in negative or to leave it out of account”. This would usually only be applied in exceptional circumstances, for example if the child was frittering money away, behaving irresponsibly in terms of spending and lifestyle.
The obligation to financially support a child can continue long beyond the age of 16 where education or vocational training applies, and in Scotland this could mean up to the age of 25 where the circumstances are met.
If you’re unsure about how the law in this area affects your particular family circumstances, get in touch with our expert family solicitors who can help.