Legal Director
Myerson Solicitors
Why a child’s needs are the paramount consideration on divorce
On divorce, the court will consider a list of factors under section 25 of the Matrimonial Causes Act 1973 when deciding how assets are to be divided.
Section 25 (1) provides that the court must give first consideration to the welfare of a child of the family who has not attained the age of 18.
The Matrimonial Causes Act 1973, Section 52 (1) defines a child of the family as:
- A child of both parties; and
- Any other child who has been treated by both parties to a marriage as a child of their family (not including a foster child placed with the parties as foster parents by the local authority or voluntary agency).
The court will have regard to the child’s housing and day to day income needs and such needs may take on a greater significance in comparison with the other factors to which the court must have regard to in cases where the assets and means of the parties are limited.
Factors the court will consider
The court must have regard to all the circumstances of the case and will look at all the relevant issues that are not specifically address in the Matrimonial Causes At 1973 Section 25(2) checklist.
The Section 25 factors considered by the court on financial provision include the following:
- The income, earning capacity and other financial resources each party has or is likely to have in the foreseeable future.
- The financial needs, obligations and responsibilities each party has or is likely to have.
- The standard of living enjoyed by the family before the breakdown of the marriage.
- The age of each party and the duration of the marriage.
- Any physical or mental disability of either party.
- The contributions each party has made or is likely to make to the welfare of the family.
- The conduct of each party.
The weight given to each factor depends on the particular facts and circumstances of each case. The objective is to achieve a fair outcome. An equal division of the marital assets may be appropriate where there is sufficient capital to house both parents. In cases where the assets are more limited, the needs of the child may override issues of equal sharing.
Dividing assets in a divorce is rarely straightforward but when a child has significant physical or learning disability, the question of housing is important. If the family home has been adapted with ramps, hoists, widened doorways or sensory safe spaces, it may be impractical ad unsafe to move a child to a new property that is not set up to meet the needs of the child.
Consideration will need to be given as to whether the adapted property should remain with the parent who is the primary carer.
The court will consider expenses associated with the child’s accommodation and basic expenses such as the cost of food and clothing. The court will also have regard to the standard of living of the family and all the circumstances of the case, including how the children are educated.
Section 25(2) above refers to the financial needs, obligations and responsibilities each parent has in relation to a child, but these responsibilities will not disappear when a child turns 18 particularly if a child has lifelong needs.
If a child has a disability, this may constitute special circumstances that may allow a financial provision order to be made that extends beyond their 18th birthday. Additionally, the court may make a maintenance order to meet expenses attributable to the child’s disability provided the criteria set out in CSA 1991, Section 8 (8) are fulfilled.
The court will wish to ensure that adequate provision is made for children with a disability and it may consider making periodical payments order or lump sum order to meet capital expenditure if, for example, any special equipment is required.
Child support for children with special needs
The court has jurisdiction to make orders for maintenance in respect of a child with special needs, notwithstanding the general restrictions upon making periodical payments for the benefit of a child who falls within the jurisdiction of the Child Maintenance Service. The court can make these orders regardless of whether an application for a maintenance calculation has been made.
Nesting arrangements
If separated parents feel that it will be of benefit to their child to provide some consistency, consideration may be given to a nesting arrangement. This involves separated parents taking it in turns to look after their children in the family home while the other parent temporarily lives elsewhere. This means that the child can stay in one home while parents rotate in and out of that home.
For a disabled child, this can be a helpful arrangement as it avoids moving equipment that the child may need and ensures the child remains in a familiar adapted space.
However, what may suit the child’s welfare may not be financially sustainable for the parents long-term and nesting may be a temporary measure rather than a permanent solution.
Planning for transition
Many parents of disabled children will find that support that was available through children’s services may fall away and for separated parents in divorce proceedings this presents an added dimension: financial settlements and child maintenance orders often assume that support for children ends at adulthood, but for many young disabled people their needs remain lifelong.
The Care Act 2014 provides when the local authority has carried out an assessment, information should be provided about whether the young person or child’s acer is likely to have eligible needs for care and support when they turn 18.
The Care Act 2014 sets out when the local authority has a responsibility to meet someone’s care and support needs. The act gives local authorities a legal responsibility to provide a care and support plan (or a support plan in the case of a carer). The personal budget must be included in the plan, and this adds to a person right to ask for a direct payment to meet some or all their needs.
The Children and Families Act creates a birth to 25 years Education, Health and Care Plan for children and young people with special educational needs and offers families personal budgets so that they have control over the type of support they receive.
Practical tips for separating parents of disabled children
On separation it is important to consider the following questions:
- Should child maintenance or financial provision extend beyond 18 where a disabled young adult cannot support themselves
- Can any settlement include provision for long-term care, sometimes structured through a trust
- How should parents balance their own retirement planning against the knowledge that their child may always need financial and practical support
Read more articles by Sarah Whitelegge.
Read more articles by Myerson Solicitors.
About Sarah Whitelegge
Sarah Whitelegge is a Legal Director at Myerson Solicitors, Altrincham, Cheshire. She advises on a wide range of family matters including divorce, dissolution of civil partnerships, financial settlements, separation, co-habitation, pre and postnuptial agreements, disputes regarding children and domestic violence.
She is particularly experienced in matters concerning complex children matters and has experience of dealing with applications for child arrangement orders, prohibited steps orders, specific issue orders, and special guardianship orders.
She has significant advocacy experience, having regularly appeared in the Family Courts representing clients in relation to private law children matters, financial order proceedings and domestic violence matters.
Sarah is a committed member of Resolution and has achieved specialist accreditation in private children law and domestic violence.
For more information about Myerson Solicitors and its Family Team, visit: https://www.myerson.co.uk/personal/family-law
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