Over the hills and far away
It is not uncommon for divorce proceedings in the English jurisdiction to involve a spouse who lives abroad and child support issues are usually one of the main concerns. How do you obtain a divorce financial settlement including child support if your ex is not willing to negotiate? The Maintenance Orders (Reciprocal Enforcement) Act 1972 may help.
This is the subject of a recent enquiry from Sarah (not her real name)
I am divorcing my husband who lives in USA – the divorce case is in UK. I first contacted my solicitor last year in may and this has been taking a year now just to get divorce – i am not asking anything financially from my husband even knowing how much i am entitled to, however i want him to start paying child support which is 15% from his income as i have been advised from my solicitor. i tried to negotiate but my soon to be ex husband is not paying. how long will it take if i issue proceedings? thank you!
To be honest, I don’t know how long it would take if Sarah issued proceedings. It depends upon the type of proceedings, the foreign jurisdiction she is dealing with and the speed of her lawyers, but I suspect it will not be quick for reasons I will explain shortly. International claims for financial relief are a notoriously difficult area to navigate even for highly experienced family lawyers.
Back to basics…
It sounds as if Sarah has done the right thing first which is to try and negotiate the level of child support. Unfortunately, her spouse is not playing ball. There are few things more unattractive than a man who won’t take financial responsibility for his child or children. So what can Sarah do?
In the English jurisdiction, for the great majority of cases in the family courts involving child support, the court only has power to give an order if the spouses are in agreement. In the absence of agreement, the CSA has the power to carry out a determination of the absent parent’s net income and demand payment on the basis of a formula. In Sarah’s case, since her solicitor advises she should seek 15%, I deduce that Sarah has one child with her husband. (The CSA will seek 15% of net income for one child, 20% for two and 25% for three or more children). In general terms, the CSA only has jurisdiction for parents who live in England and Wales.
But the CSA can still retain jurisdiction for the absent parent if:
- the absent parent is in the armed services; or
- working for the UK government; or
- employed by a UK registered company
I’m presuming that none of these categories apply in Sarah’s case. So if Sarah can’t negotiate with her husband and the CSA don’t have jurisdiction, then she will just have to issue in the English court to get child support, right? Not necessarily.
Transmission of a claim?
If Sarah issues financial proceedings in the English courts – and it would normally be in her local Magistrates’ Court (also called a Family Proceedings Court) and obtains an award of maintenance (for child support) against her husband then she will need advice upon how to enforce it in the USA. But Sarah should consider, if she has not already, the ability to transmit her claim for maintenance rather a final order for maintenance to the USA and to ask the court there to initiate the claim for child support against her husband. To my knowledge, the American states give the choice of transmission of the claim or the enforcement of an English order. It may be more advantageous to Sarah to transmit the claim to the American jurisdiction rather than have her English lawyers pursue it here and then seek to enforce in the States.
Sarah should test the water by googling family law attorneys in the state where her husband resides and then sending an email to several of them asking them to weigh up for her the benefits of transmitting her claim for child maintenance or enforcing a final order for that maintenance from the English Court. This feedback will assist her English lawyers to decide the best course of action for Sarah.
Enforcement of final order
Whether Sarah is advised to transmit her claim for child maintenance or whether she obtains a final order first in England and then seeks to enforce in the USA, she will have to follow pretty much the same procedure. Her solicitors will need to contact the REMO (Reciprocal Enforcement of Maintenance Orders) unit at the Office of the Official Solicitor and Public Trustee. REMO is a central authority for international maintenance claims in England & Wales. The good news about this approach is that most of the enforcement is undertaken by way of liaison between governmental departments (in the English and foreign jurisdictions) so it will often be free.
Since Sarah is looking to get financial support from a husband in the US, I’m sure her solicitors will have regard to the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 which allows for a UK order for maintenance to be enforced provided the payer is resident or has assets there. Equally, if Sarah and her advisers conclude that the transmission of her maintenance claim to the US is the better option then they will consider The Recovery of Maintenance (United States of America) Order 2007.
Sarah states that she is not asking for anything financially from her husband (apart from child maintenance). I’m not sure why not, if she really needs it and if her husband can pay. The Maintenance Orders (Reciprocal Enforcement) Act 1972 deals with spousal maintenance as well as child maintenance. I’m just saying…