A maintenance claim is where you wish to receive money from the other parent of your child in order to help pay its upbringing. If you cannot reach a private agreement with the other parent/guardian of the child, then you may wish to bring the case for the court to decide.
When applying for a maintenance order you can claim for a
periodical payments order; (usually monthly payments of a fixed amount)
lump sum order; (a one-off payment)
transfer of property order
maintenance pending suit order (for maintenance while the proceedings are still ongoing)
After the court has returned a signed copy of your application, you must serve a copy of it on the respondent. If you have any problems you may seek the help of one of the sheading’s coroners. If you do not know the location of the respondent and cannot serve a copy on them, the matter cannot be brought to court.
Usually an application for financial provision is necessary when the two parents/guardians cannot agree maintenance. Before making an application, you should attempt everything possible to reach a settlement out of court.
The court strongly advises you to consult an advocate before making any application for financial provision.
They will be able to advise you which forms to fill in and what needs to go with it before you send it to the court.
The court’s staff cannot give you any advice on which form you need or what you need to put on it. It is not a requirement to have an advocate for the hearings.
In order to make an application for financial provision, you must first fill in and return to the court, two copies of Form 12 - Application For Financial Provision (Word doc) (PDF) and a sworn Affidavit of Means (Word doc) (PDF). . This form can also be obtained by coming in to the public counter at the courthouse or phoning the Courts Office.
Who can make an application?
Any of the following can make an application for financial provision in respect of children:
a parent or guardian of the child
and person who has a residence order in respect of a child
the Department of Health and Social Security, where the child is in care
a child of the family who has been given permission to apply for financial provision.
Who pays the costs for coming to court?
If you do not qualify for legal aid, the Deemster will make a provision in his order as to who will pay the costs of the court hearing and the advocates. He may decide to split the costs equally, or he may order that one party pay a greater percentage.
What happens next?
The court will then return two signed copies to you. One is for your own records, and one is the copy you must serve on the respondent in order to commence proceedings. If you cannot serve it yourself, you can instruct a coroner to do it for you.
What can the respondent do?
The respondent can either:
agree to pay the amount you have sought in the application
choose to defend the application in court
choose not to reply to the application.
Be aware that the respondent does not have to inform you, or the court, that he has received the application. He may just turn up to the court on the date and time shown on the application.
If, after receiving your application, the respondent agrees to pay what you have asked for, you should be able to come to an agreement privately. If you have reached an agreement then you should write into the court to inform them.
You can then either proceed with a private agreement without the court, or you can request that an order be made administratively. Be aware if you continue with a private agreement, the court will have nothing on record to enforce if the respondent stops paying.
If you request the payments go through the Chief Registrar, then the court will have an exact record of how much has been paid and when. If you wish your maintenance payments to be paid through the Chief Registrar, then you must ask the court: they cannot advise you to ask for this. If you have not requested payments through the Chief Registrar in your application, then make it known to the Deemster at the directions hearing that this is what you wish to happen.
If the respondent decides that he doesn’t agree with paying you any maintenance, or he does not agree with the amount of money you are asking for, he/she may decide to dispute the application.
If this is the case then the application must be brought into court for the respondent to present his objections to the order and any evidence he has for his case.
What if I accept the respondent's compromise offer?
The respondent may decide to make you a compromise on the amount to be paid while the court process is ongoing.
If you agree, write in and inform the court. You can either then continue with a private agreement, or ask the court to make an order administratively.
What if I don't accept the respondent's compromise offer?
Inform the respondent that you do not want to accept their offer and the case will continue to directions.
Will the case go straight to court?
If the respondent decides to dispute your application in court, the matter will be set down for a 10 minute directions appointment. In this hearing, the Deemster will order any documentation he/she wishes either party to submit. This will usually include asking the respondent to file an 'affidavit of means' to prove his income and outgoings.
Disclosure of documents
If the matter proceeds to a full hearing, the Deemster may then order full disclosure. Here, the respondent and applicant will be required to submit details of what was recorded in their 'affidavits of means'. This may include bank statements, wage slips, mortgage repayment forms, educational bills and any other monthly outgoings from both parties.
The Deemster may also order that any new spouse/co-habitants of either party be required to submit evidence of their contributions to the household and upbringing costs of the children.
What if the respondent refuses to disclose all his financial documents?
If the Deemster orders full disclosure, the respondent must disclose all of his documents with regards to his financial situation and dealings. If he refuses to disclose, the Deemster may make an order in the absence of these documents to his disadvantage and the respondent could be held in contempt of court for refusing to obey a court order.
What happens if the respondent fails to attend court?
If the respondent fails to turn up to court for a hearing, the Deemster will usually adjourn the matter to a later date to give them a chance to attend. However if the respondent fails to turn up again, the Deemster may proceed to make an order in his/her absence.
If the respondent has refused to pay you maintenance after a court order, you must bring the application back to the court. The maintenance department at the courts will then take action.
They will issue the respondent with a warning about his arrears and if he continues to avoid payment, a warrant will be issued for his attendance at court.
The court can then apply a variety of measures to ensure payment resumes as soon as possible. These can include;
- an attachment of earnings order
an arrestment order
a charging order.
If the respondent continues to avoid paying maintenance, then the ultimate sanction would be a prison sentence.
Over time your circumstances may change: you may need more maintenance money to cover any additional costs that arise, or you may decide that you do not need as much as is being currently paid.
Varying the amount paid
If you wish to change the amount you are being paid or are paying in maintenance then you need to fill in, and return to court, one of the two following options:
The circumstances when this may be necessary include;
loss of your job
you now have a better paid job
you have a long term illness that is preventing you from working
you have remarried, or are now co-habiting with another partner
the child's educational needs have changed
the parent looking after the child has changed or the child has been taken into care.
If the respondent’s circumstances have changed, you can also apply for a variation of the original order. The circumstances where this might be necessary may include:
the respondent got a new, better paid job
the respondent has re-married or is co-habiting with another person and their financial burden has reduced
the respondent has sold the former matrimonial home
the respondent has come into a large sum of money (e.g. an inheritance)
you have found out about some undeclared income the respondent has been enjoying.
If you wish to vary the amount you are being paid, you will need to submit an affidavit in support of your reason for the variation of the maintenance containing evidence of the changed circumstances. Remember it is up to you to send a copy of any application for variation of maintenance to the respondent as well as the court