conférence de la haye de droit international privé - HCCH

amount of child support payable by the absent parent. This adjustment is done by means of
set formulae. CSA awards are all periodical payments.
Although the Agency was meant to take over from the courts in this area, it has been unable
to take on the full workload of all the mandatory and voluntary applications for assessment
which it would potentially receive. Transitional provisions were therefore enacted to allow the
courts to continue temporarily to make and vary aliment awards in cases where the parent
with care was not in receipt of income support, family credit or disability working allowance,
and where either (I) the parent with care had obtained a court order for aliment before April 5,
1993, or (ii) had made a written agreement relating to aliment with the absent parent before
April 5, 1993.
Furthermore, it has now been provided that even if parents did not make an agreement before
April 5, 1993 they can still ask the court to make a maintenance order which is in all material
respects in the same terms as a written agreement entered into by the parties after that date.
Some residual jurisdiction, other than that arising due to transitional provisions, remains with
the courts in respect of awards of aliment. This principally arises:
(i) Where maintenance is sought for children who are aged over 16 (or over 19 if in full-time
non-advanced education and the court has jurisdiction under the 1985 Act).
(ii) Where an additional or "top up" aliment award is sought on top of the amount set by
child support officers using the ordinary 1991 Act formula. This will be relevat only
where the absent parent is a very high income earner;
(iii) Where the absent parent lives abroad;
(iv) Where support is sought from a non-parent who has accepted the child as a member of
his family. This is possible under the 1985 Act but not the 1991 Act;
(v) Where support is sought for a child with a disability.
For the aforementioned case and those others where maintenance is sought for a spouse, the
1985 Act is the relevant legislation. Under this Act it is not necessary to go to court to obtain
aliment (note that under the 1991 Act parents can still enter into agreements, legally
enforceable or not, provided caring parent does not claim benefit). Parties may reach their
own agreements with respect to aliment which the courts will enforce. Otherwise, a judicial
decision will be made on the matter. In granting decree in an action for aliment the court has
power according to section 3(1) of the 1985 Act to:
"(a) Order the making of periodical payments, whether for a definitive or an indefinite period
or until the happening of a specified event:
(b) Order the making of alimentary payments of an occasional or special nature ...
The Act says that this includes "payments in respect of inlying, funeral or educational
expenses"; this power is not intended to give the court a power to substitute a lump sum for a
periodical payment (section 3(2)). Aliment is conceived as being of an income nature although
the regular payments may be supplemented by occasional or special payments under
paragraph (b).
(c) to backdate an award of aliment
(i) to the date of bringing of the action or to such later date as the court thinks fit; or
(ii) on special cause shown, to a date prior to the bringing of the action;
(d) to award less than the amount claimed even if the claim is undisputed".
22