Maintenance and separation
Updated 22 April 2015
Words you may need to know
Maintenance – money given to support a partner, children or spouse
Spouse - Husband / Wife
Voluntary - doing something without being made to
Separation – parting from one another or not living together
Deserted – left the family home, left the partner
Enforced - made to happen
Interim – in-between or temporary
Affidavit – a sworn statement and you swear the information is correct
Variation – a change
Adultery - one partner or another enters a new relationship with someone else
What is maintenance?
Maintenance is money that is given by one partner to the other, or to children, to meet their living needs. It is to cover, food clothing and other things necessary to live. When the Court decides who has to give what, it is written in what is called a maintenance order.
Who can get maintenance?
Under the Separation and Maintenance Orders (Jersey) Law 1953, as amended, either partner in a marriage or civil partnership, can apply to the Petty Debts Court for a maintenance order for themselves or a child of the marriage or civil partnership. The amount awarded will take into account how much both partners' earn and their financial situations.
How to get maintenance
When a married couple separate the husband or wife may carry on supporting the other party and any children freely. If not, or if the agreement does not cover the family's needs, they can get a maintenance order through the Petty Debts Court.
You don't have to get legal advice to get a maintenance order, although it is better to if there has been actual or threatened violence, housing problems, or planned divorce. Legal Aid may be available in these situations depending on your circumstances.
The benefit of voluntary maintenance agreements is that both parties can keep on good terms and it is easier to give more or less if things change. A husband or wife is usually aware of how much it costs to keep the family, but when separate accommodation and living expenses are needed, that can cause can cause financial/ money problems.
The drawback of a voluntary agreement is that it can't be enforced by the court. The payments may stop at any time, or drop down, and the only thing the other party can do is to get a maintenance order. Also, it may be difficult to prove payments for income tax purposes.
Separation and Maintenance Orders
A Separation and Maintenance Order may be applied for by either party to a marriage for the following reasons. The party :
- Has failed to provide reasonable maintenance for the applicant/ other person;
- Has failed to provide, or make proper contribution towards reasonable maintenance for any child of the marriage;
- Has behaved in such a way that the applicant cannot reasonably be expected to live with him or her; or
- Has deserted the applicant.
That can be read as;
- The other person has not given the person applying enough money to live on
- The other person has not given enough money or any money to look after the child/ren
- The other person has behaved so badly that the person applying can't continue to live with them
- The other person has left them
The Petty Debts Court may make an order or more than one order that has all or any of the following arrangements:
- that the person applying no longer needs to live with the person they married;
- a Residence Order which says who the child/ren (under sixteen) will live with. (See 08.30.40 for more information);
- that one person will pay to the other a weekly sum of money for the needs of the person and any child/ren until the child/ren reach sixteen or finish full time education. The order won't insist that any money is given for children over the age of 21, even if they are still in education.
- that either the husband or wife has to leave the home they share within a set time ; and
- that, if the Landlords to the property agree, the lease if it is held by the person leaving be transferred to the other person staying.
How to apply for a Separation and Maintenance Order
It is better to get legal advice (through Legal Aid if you qualify) to get a Court Order.
You will have to give a statement of what money/ property/ things you have and reasons for the separation, which will be heard in the Petty Debts Court at the Wednesday hearings. Usually the cases are left until last after a short break which is held to clear the Courtroom, so that the case can be heard in private.
There are two types or order:
Interim Order: Can be applied for straight away while waiting for a divorce so that the person can live (but not to settle who has child/ren and when the other person can see them). No proof is needed and often the other party does not have a lawyer. The Court will often award a token payment (such as £15 per week) until the case comes back to Court with both parties legally represented. The Court will decide on how much the weekly maintenance should be based on what is called the "affidavits of means" both people have given. An affidavit of means lists everything the person owns and what their outgoings are; how much they need to live on.
Often the lawyers representing will have already reached an agreement for an amount of money which the Court approves.
An Interim Order only lasts for three months and must be renewed if necessary. Sometimes Interim Orders are asked for all the time so that evidence does not have to be given to the Court.
Final Order: Roughly ten such orders are applied for per year at the Petty Debts Court. They cover maintenance, who has the child/ren and/or access to child/ren until child/ren reach sixteen years. Final Orders can be challenged in Court, as evidence has to be brought of the state of the marriage, and both husband and wife appear as witnesses.
How is the maintenance paid
The person receiving it can ask that maintenance money is paid in cash, or via a bank account, regardless of whether the agreement is voluntary or as the result of a Court Order. Payment may be weekly or monthly, although the amount is usually worked out per week.
It may be easier for the maintenance to be paid through someone else, for instance the Viscount's Department if the husband and wife are not on good terms and don't talk. Sometimes the Court will suggest that, even if it is not asked for.
The Court may order that payments are to be made to the Viscount's Department (as 'Officers of the Court') on behalf of the person applying. These payments are always ordered to be made weekly. If these payments are not made, the applicant can ask the Viscount's Department to get the money on their behalf.
If the Court has ordered payments to be made to the Viscount's Department, but they are being made direct to the person, then the Viscount will ask the Court to change the order so that it says what is happening.
An amendment to the Maintenance Orders (Enforcement) (Jersey) Law 1999 was agreed by the States in November 2006, which gives the Royal Court or the Petty Debts Court the power to take money out from (of up to no more than half of) the wages of the person having to pay when the order is granted.
How much maintenance will be paid
Each person's situation is different with their own circumstances. The Separation and Maintenance Orders (Jersey) Law 1953 as amended has rules giving the most that the Petty Debts Court can order to be paid weekly under the Law as follows:
Amount per week:
Maximum sum of money for the person applying £200
Maximum for each child £100
Larger amounts may be agreed between parties through their lawyers.
What are the income tax effects?
The duty is on the taxpayer to send details of all maintenance orders to the Income Tax Department as proof that the orders have been approved. The couples will say what amounts are being paid or received on their tax returns, and these can then be confirmed.
Voluntary agreements drafted and signed at lawyers' offices are also considered to have been approved, and the taxpayer should send evidence of the agreement to the Income Tax Department on a special form for the purpose.
Informal agreements which have been entered into may result in problems when the parties try to claim allowance for tax, as there is no evidence to offer. It might therefore be necessary to have an agreement drawn up by a lawyer.
The income tax allowance for a child/ren can be shared between the parents on the basis of how much each person is paying/receiving.
Maintenance payments are paid gross which means without any tax taken off. The person who receives the money will have to declare it and will be taxed on this income if their income is over the income tax threshold, but the first £2,600 is free of tax. The person, who pays, may get tax relief on the payments they have made up to a maximum of £2,600.
What happens if maintenance is not paid?
If there is a Court Order for maintenance under the Separation and Maintenance Orders (Jersey) Law 1953 as amended, the Viscount's Department may sometimes be willing to help to get back arrears on behalf of person owed the money without having to return to the Court. This would be considered only if:
- under the order, the maintenance is to be paid direct to the Viscount's Department; and
- the whereabouts of the other party is known and they have a job or property to allow them to get back the money owed.
Under the Maintenance Orders (Enforcement)(Jersey) Law 1999 it is possible for someone who has not received payment under a maintenance order, either of the Family Division of the Royal Court or of the Petty Debts Court, to apply for what is called an Ordre Provisoire. The person who is owed the money (the Payee) will need to swear an affidavit (an affidavit is a sworn statement and this costs roughly £40) saying how much money is owed in maintenance before either a notary, advocate, Jersey solicitor or jurat of the Royal Court.
The affidavit then has to be taken to either the Bailiff's secretary if the maintenance order was issued by the Family Division of the Royal Court or the Petty Debts Court Greffier if the maintenance order was issued by the Petty Debts Court. Stamp duty of £50 has to be paid for an Ordre Provisoire (provisional order) signed by the Bailiff or £25 by a judge of the Petty Debts Court. The Ordre Provisoire is then taken to the Viscount's Department who will straight away serve it on the person who owes the money. The cost of serving the order is no less than £25 up to a maximum of £100 to be decided by the Viscount. The Ordre Provisoire will put a distraint (this means the person who owns them can't sell them) on the goods / property (not houses or land) of the person owing the money and will also make a temporary arrest of wages until the parties attend Court (either the Family Division of the Royal Court or the Petty Debts Court) to have the distraint or arrest on wages or both confirmed.
An arrest on wages means that the employer of the person owing the money has to take it out of their wages and send it to the Viscount. The Court can arrest wages to the amount asked for if it thinks that is the right thing to do in the circumstances, and this may get back money owed, or make sure future payments are made.
In the case of voluntary agreements you should get legal advice as payment may not be enforced by the Courts. A Court judgement for payment of the money owed would need to be made.
If there is a Court order for maintenance the person owed the money can claim the money on their own behalf through the usual way of issuing a summons to the Petty Debts Court. See 4.8.2. This can prove difficult if the other party is unemployed or self-employed, as there can be no arrest on wages. (In the first case, there is no wage to take money out of and in the second, you are asking the person to take it out themselves!) However, a distraint on assets (which is things they own) and a forced sale of the assets, can be ordered by the Court. See 4.32.0.L7 .
An amendment or change to the Maintenance Orders (Enforcement) (Jersey) Law 1999 was approved by the States in November 2006, which gives the Royal Court or the Petty Debts Court the power to agree an arrest (of up to no more than half) of the wages of the person paying when the order is made.
What if the other person lives outside Jersey?
If the other person lives in the UK, a maintenance order which is given in the Jersey Courts can be enforced in the UK. You will need to get legal advice about how to do this.
If the address of the person in the UK is not known, a Jersey lawyer will use investigators to help discover where they are.
If they live in another country, it should be possible to get a maintenance order in that country through a Jersey lawyer.
If a wife and children plan to move to Jersey from the UK or another country where the husband is living it would be wise to get a maintenance order in that place (depending how soon the move would take place), and then have it registered in Jersey.
What if the husband lives in Jersey and the wife lives in or moves to the UK or another country?
A maintenance order can be taken out in the UK and then enforcement applied for in Jersey. This is made through the Judicial Greffe.
There are some countries which have special agreements with Jersey. They are called Reciprocal Agreements and it means that they will carry out each other's court orders.
A wife living outside the UK or in a country which the States have declared to be a reciprocating country can get a Court Order in that country, and have it registered in Jersey. If the wife leaves Jersey having got a Jersey maintenance order, she must apply to the Court in Jersey if she wishes the order to be changed at any time. She should contact the Registrar, Family Division at the Judicial Greffe.
Reciprocal Enforcement of Maintenance Orders
Reciprocal enforcement means that countries which have entered into an agreement will make sure that orders made in their country can be used or enforced in the other country. Enforced means given the force of the law.
Maintenance orders made by a Jersey Court are able to be enforced in countries such as England, Scotland, Portugal, Poland, Australia, Italy and Ireland and maintenance orders made in those countries can be enforced in Jersey. The law and rules can be found on the Jersey legal information web site www.jerseylaw.je/Law/LawsInForce/alphabetical.aspx under the Maintenance Orders (Facilities for Enforcement) (Jersey) Law 2000.
The law and the rules with them set out how to go about forcing maintenance orders in countries and places that are parties to the 1973 Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance obligations. France, Portugal, Ireland and Poland are parties to this convention, as are many of the states within The United States of America.
There are also ways of forcing maintenance orders made in Jersey and countries and territories that are convention countries under the UN Convention on the Recovery Abroad of Maintenance. These include Australia, France, Poland and Portugal.
Payment of money for the maintenance of a child may also include payment for a child's education.
You can find out how to get a maintenance order or how to enforce it from the Registrar, Family Division, Royal Court.
For the enforcement in England of Jersey Maintenance orders you will need to give the Registrar, Family Division the following:-
1. A list of payments made and the last date, if any, of when you received payment. You may be asked for proof.
2. A copy of the order giving you the maintenance which will then be approved by the Court.
3. An affidavit (which is a sworn statement) by you giving as much of the following information as you can:-
- what your financial position is (how much money / debt or outgoings you have )
- the full name and address of the respondent (the person you claim owes the money)
- the respondent's financial circumstances, including the name and address of any employer of the respondent, his occupation, his telephone number, his description and, if possible, a photograph (everything you know about what he has, where he works and lives, what he looks like and any contact details )
- when and where their passport was issued
- and any other information about their finances that may be important (such as has just inherited money, won on the pools/ horses etc)
- name and address, including any bank details as to where the payments should be sent
4. Marriage certificate (if you were married) and birth certificates of the child/ren (certified copies are acceptable). A certified copy is one which a lawyer has signed to say that they have seen the original one and this is a true copy.
What happens if things change?
There may be things that happen which can affect a Separation and Maintenance Order:
- the people concerned start to live together again
- one of the parties commits adultery
- children reach the age of 16 (or 21 if the order has been extended).
See 8.27.10.L11 Maintenance Order - applying for a variation
Either party to the order may ask the Court to change or stop the order if financial circumstances change.
What happens if the couple decide to divorce?
At some stage either party may decide to start divorce proceedings as long as:
- there are the right grounds or they have been separated for long enough
- the couple have been married for three years
- the couple live in Jersey, or, if the wife is the person taking the action, she lives in Jersey or has lived in Jersey for the past three years
A Separation and Maintenance Order can be very helpful in agreeing what might be necessary for a divorce order. An order will be made by the Court for maintenance to continue after divorce.