Maintenance - unmarried parents
Words you may need to know
Illegitimate – a child is illegitimate if it is born to parents who are not married.
Maintenance - A Maintenance payment is a payment made by one parent to the other to look after themselves and a child or children.
Legally responsible – The law might say that you are legally responsible; that you have a duty to do something
Parental responsibility – the person or people who can make decisions about child/ren
Who is legally responsible for maintaining illegitimate children?
A woman who has a child born before 2nd December 2016 and who is not married has sole parental responsibility for her child. This means that only she can make decisions about the child. However, the father can apply to the court for parental responsibility. Alternatively both parents can sign a parental responsibility agreement and file it at the Judicial Greffe free of charge. See 8.30.40
The father of an illegitimate child may wish his name to be put on the child’s birth certificate, but this is only possible if the mother agrees. The mother may put the name of the child’s father on the child’s birth certificate but only if the father agrees and he must fill out an application form and sign the register.
A man whose name is on the child’s birth certificate may find he is asked for maintenance payments to help look after the child.
An unmarried mother may not apply for maintenance for herself.
Voluntary maintenance payments
4. A man may voluntarily give the mother of his child money to help maintain the child. The mother could refuse the money if she wished.
5. A maintenance agreement may be made between the father and mother to regularise the payments.
6. It seems that a man acknowledges fatherhood by allowing his name to appear on a child's birth certificate, or by making voluntary maintenance payments. This acknowledgement then prevents the man from being able to deny paternity in the future, or from being able to claim that he is not responsible for contributing to the maintenance of the child.
Obtaining an Order for Maintenance
7. Either parent with a Residence Order can apply to the Family Division, Judicial Greffe, for a Financial Provision Order. The Court will then make a declaration as to paternity and in most cases refer the assessment of maintenance to the Judicial Greffier.
8. A Financial Provision Order covers the periodical payment of maintenance for children only. Lump sum and property transfer orders may also be sought.
If the father disputes paternity
9. If the man the mother claims to be the father disputes paternity, the mother will need to produce evidence, for example, the man's name as father on the birth certificate or a D.N.A. test result. The man cannot prevent the Court from making an order by taking no part in the proceedings.
10. The Court must be convinced of the paternity of the child or the affiliation order will fail.
11. In cases where the man has untruthfully declared fatherhood by having his name put on the child's birth certificate, it is unlikely that the Court would accept that he is not indeed the father, but D.N.A. testing could help him prove his case.
How the Court decides how much maintenance
12. The Court's decision on the appropriate amount of maintenance a man should pay will depend upon the circumstances of the parties involved. The Court will require evidence of the parties' means in the form of affidavits.
13. The amount of maintenance is a contribution towards the upkeep of the child, and would not be expected to support the child entirely. Also, maintenance is not intended to support the mother of the child.
How payments are made
14. A maintenance order can specify that payments are made direct to the mother, if that is the mother's wish. However, it is also possible to request payments to be made to the Viscount's Department for collection by the mother.
What happens if the father does not pay
15. If the father fails to pay maintenance the mother should seek legal assistance to recover the unpaid maintenance. This would require the man to be summonsed to appear at either the Petty Debts Court or Royal Court, where an arrest on wages order might be made, or an arrest and sale of personal property ordered if the man is self-employed, or unemployed. Also see 8.27.10.L1.
Under the Maintenance Orders (Enforcement) (Jersey) Law 1999 as amended, the Royal Court or the Petty Debts Court can authorize an arrest (of up to no more than half of) the wages of the payer on the making of a maintenance order.
Changing (varying) a maintenance order
16. An order for the maintenance of a child normally lasts until the child reaches the age of sixteen, or ceases full time education.
17. If the circumstances of the parties to the order change, they may be entitled to apply to the Court to vary the order if there has been a material change. For example, the father may have lost his job, or suffered illness. If either of the parties marries, maintenance should continue to be paid unless and until the order has been changed.
See 8.27.10.L11 Maintenance Order - applying for a variance
Tax and maintenance
18. In certain circumstances the father of an illegitimate child can claim the child tax allowance. This is dependent upon the whether the man is living with the mother and child. Usually the child allowance goes to the mother, who has the child living with her.
Reciprocal Enforcement of Maintenance Orders
Tracing the father
19. If the father's whereabouts are unknown it may be possible to trace him by using a private detective agency. A legal firm who intend to bring a maintenance order may be able to obtain the man's address from the Clerk of the Court nearest to the last known address.
Marriage of the mother
20. Following the mother's marriage, any arrangement for maintenance to be paid by the natural father of the child/ren may be altered.
Voluntary verbal agreements- depending on the terms of the agreement the father may cease to make payments, or continue as he wishes.
Voluntary written agreements (i.e. NOT Court Order). As long as the terms of such an agreement are resonable and clearly stated, they should be adhered to. However, with the change of circumstances it may be appropriate to change the agreement voluntarily, or either party could bring a case to alter the terms, with legal advice.
Court Orders - where there is a Court Order for maintenance payments, he may apply to the Court for the order to be terminated or varied, if the terms of the order allow for this. Some Court Orders do not include clauses allowing for any variation in future, in which case the father should seek legal advice about his future options.
Arrears - any arrears of maintenance owing at the time of the marriage could still be claimed, even if payments cease.
21. As the father of an illegitimate child is now able to apply for a Contact Order in respect of his child he might do so on the mother's marriage. If a contact order is already in force either party may apply for a variation of the order, or contact with the child may continue as before, if it is the wish of all parties.