In Scotland there are presently two systems for the determination of support: the Child Support Act 1991 has generally taken priority over the Family Law (Scotland) Act 1985 and has removed child support from the private law area and the jurisdiction of the courts to the public sphere.
However, the Child Support Act generally only applies where the person with care, non-resident parent and child are habitually resident in the UK. Where the 1991 Act does not apply, then the older scheme contained in the Family Law (Scotland) Act 1985 will operate.
Under the Child Support Act 1991 only a "qualifying child" (one who has at least one non-resident parent) is eligible to benefit from a maintenance decision made by the Child Maintenance Service A parent (or other qualifying person) with care of a child can apply for maintenance for the child from the non-resident parent.
Under the Family Law (Scotland) Act 1985 an obligation of aliment is owed by:
An ex-civil partner may also have to pay maintenance to the other ex civil partner.
Under the Child Support Act 1991 Act a child must be:
Under the Family Law (Scotland) Act 1985, a child is defined as:
If both parents are in Scotland, or another part of the United Kingdom, application is made to the Child Maintenance Service. If one parent resides outside of Scotland, the other parent can apply to their local Sheriff Court for a maintenance order but would need to seek legal advice on how to do this.
A request for child maintenance may be made on behalf of a parent or other person with responsibility for the child, provided the applicant has been given authority to do so or has power of attorney. A child cannot apply for maintenance in their own right, unless they are over 12 years of age and live in Scotland.
The Sheriff Court within whose area the child resides will generally have jurisdiction. Details of Scottish courts can be found on the Scottish Courts and Tribunals Service website.
Yes, legal advice should be sought from a lawyer practicing family law.
Court fees and legal fees will have to be paid, but application for legal aid may be made to the Scottish Legal Aid Board.
Courts can make orders for child or spousal maintenance. The amount of the order will be determined by a number of factors, notably the income of the payer. It is possible for either party to seek modification of a maintenance order by application to the court. Maintenance claims are not usually backdated beyond the date of application, although this can be done at the discretion of the Sheriff.
For child maintenance, payment is generally paid to the parent with whom the child lives.
There are a range of enforcement methods available in Scotland. These include:
Enforcement action is generally taken by Sheriff Officers, who are independent officers of the court.
Enforcement procedures in Scotland are prescribed by law under the Debtors (Scotland) Act 1987. The Act makes provision for statutory enforcement procedures and provides a level of debtor protection. For example, the Act limits the amount that can be deducted by an employer from a debtor’s salary.
There is no prescription period for the recovery of a maintenance debt in Scotland. Any debt due will be recoverable for as long as the debtor is in Scotland, or has attachable assets in Scotland. However, if the law of another country has to be applied by a Scottish court in relation to a maintenance obligation, the court will apply the relevant rules of law of that country.
The Child Maintenance Service (when both parents are resident in the UK). The Scottish Central Authority (when one parent is abroad). Details of the Scottish Central Authority are provided below.
You should contact the Scottish Central Authority.
Scottish Government Justice Directorate
Central Authority and International Law Team
St Andrew’s House (GW15)
Edinburgh EH1 3DG
Tel: 00 44 131 244 3570
00 44 131 244 4829
00 44 131 244 2417
Fax: 00 44 131 244 4848
You should contact the Central Authority for the Member State concerned. Each authority can be contacted directly.
The Family Law (Scotland) Act 1985 applies to the Maintenance Regulation. Corresponding private international law rules are contained in the Child Care and Maintenance Rules 1997, as amended.
Applications by creditors under Article 56 of the Regulation are granted legal aid automatically, unless the application is considered to be manifestly unfounded.
Additional action was taken to ensure assistance can be provided in accordance with Article 51. This included amendments to legislation, court rules and legal aid provisions.
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