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Harris, Law Specialist
Category: Law
Satisfied Customers: 2851
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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I am shortly to be separated (not married) and moving out

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I am shortly to be separated (not married) and moving out when sale of our communal house completes. I am willing to take the children for 2/3 days a week, and pay maintenance accordingly. What happens if the children don't want to stay? The mother has been busy waging a propaganda offensive, to poison the relationship with my children. If they don't turn up does that mean payment defaults to the maximum amount as per calculator despite my willingness to house the as above?

Hi, thank you for your question. Just a bit more information required to fully assist you:

-Are you in England or Wales?

-How old are thr children?

-Is the proposal for the to stay over 2-3 nights a week?

Customer: replied 1 year ago.
England. 2 children one 16 but in full time education the other is 14. Yes 2/3 nights a week

Thanks for confirming. Given that the children are 14 and 16, if they decide not to stay over with you there is no way to force them to do so given their ages. Furthermore, the 16 year cannot be subject to any child arrangement order as the court will not deal with children once they reach 16, unless there are exceptional circumstances such as learning disabilities. Furthermore, if the 16 year old is not studying A-Levels or in approved unpaid training, then there is no child maintenance liability for that child.

In your situation you should make it clear to the mother, and have an agreement in writing regarding the arrangements and the amount of maintenance you will be paying.

I hope this assists you. If you found this information helpful please provide a positive rating using the stars at the top of this page. I will not be credited for your question without a positive rating. Thank you

Harris and other Law Specialists are ready to help you
Customer: replied 1 year ago.
The 16 yr old is doing A levels at college now. I guess the answer I need is that if we agree an amount to be paid per week based on 2/3 nights per week and they don't wish to stay will my payments default to maximum 20%. Through no fault of my own? I know I can't force them but I am willing and able..

Thanks for confirming - if there is a voluntary agreement between you regarding maintenance, then there will be no automatic default or change to the maintenance, unless this is provided for in your agreement. Therefore under a voluntary agreement you would be liable for the amount you agree to between you.

If there is a formal child maintenance calculation from the CMS you would be liable to that amount and she would need to apply to vary it if circumstances change - there is no automatic change to it and there will need to be a reassessment.

Customer: replied 1 year ago.
Does any voluntary agreement between us need to be legally drawn up? So once drawn up and they do not wish to attend, then there is no recourse for further payment?But is she then free to take it to CMS even though we have an agreement in place if they don't come, even though I am amenable to 2/3 nights per week? Like you say I can't force them so I should not be penalised for children who do not wish to attend?

No it does not, but it would be useful for both of you to have it written down for future reference. Once drawn up, if the children no longer want to stay overnight with you and there is no agreement between you to vary the maintenance, she will be entitled to apply to the CMS for a calculation.

Legally the way it will be seen is that you are not "penalised" because they do not want to stay overnight with you, but that the mother will need to meet their needs for those extra days they are staying with her, which is why the maintenance amount increases.

Customer: replied 1 year ago.
I will pay more if they do not want to stay, simply put. Irrespective of any agreement between us. That does not seem fair at all given she spends most of her time coercing them to do just that , I.e not visit. Bloody marvellous system that is :(
Thanks for the advice

Unfortunately, that will be the case despite your agreement.

I hope it goes well. If you have any questions in the future you can ask for me directly by starting your question For Harris