Posted on Aug 03, 2011 in Family Law by Amanda Wilson
Whilst today marks an important day for high school pupils across Scotland, with the arrival of their much anticipated exam results, it also represents a significant day for their parents, who may now face the prospect of their young preparing to fly the nest for the first time.
Obligation to Support
What most parents (whether separated, divorced or still together) are probably not aware of however, is that if their child embarks upon higher education, then as the child’s parents, they have a legal obligation to continue to support that child financially from age 18 until the child turns 25. That is provided that the child is still “reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation”. This is known as aliment.
The obligation to pay aliment to a child until the age of 25 is quite separate to the concept of Child Maintenance (child support), which the CSA has jurisdiction for in the UK, generally until a child turns 18. Unlike Child Maintenance, it is the courts that have jurisdiction to determine matters of aliment for children between 18-25 and the method of assessing this is very different to the formula imposed by the CSA.
What this means in practice, is that a student child who perhaps feels that they are not receiving as much, if any, financial support from their parents as they require, has the option to instruct a solicitor of their own to take either or both parents to court and to seek a formal award of aliment in their favour.
Generally, these cases tend to arise where the parents have separated and often, the main carer of the child may be assisting the child with their university costs, with little or no assistance from the other parent. If the child has reached 18, then the parent with care will often no longer have recourse to the CSA, so cannot pursue the other parent for Child Maintenance themselves.
In that situation, the child can seek to claim aliment from the other parent, however it is important to remember that the obligation to aliment the child is a joint obligation upon each parent.
Assessing How Much To Pay
The Family Law (Scotland) Act 1985 requires the needs and resources of the student child to be considered. The starting point is generally that the solicitor acting for the student child will prepare a list of the student child’s monthly income and reasonable outgoings. Where there is a shortfall, then either or both parents can be asked to pay the difference by way of aliment.
From reported cases, it has been established that in most cases, the student child will be expected to attempt to find some form of part time work, in order to assist with their own living costs, before an award of aliment will be considered. There are however some circumstances where that will not be appropriate (for example, a medical student who requires to attend University most days).
The resources of the parents can also be taken into account and a defence to an action of aliment is that the parent/s is already paying aliment and will continue to do so. That defence will usually be successful where the court considers the amount currently being paid to be reasonable in the circumstances. Another potential defence is for the parent to offer to provide a home for the child instead of paying aliment but clearly, that will perhaps not be appropriate if the child requires to move away from home to attend university.
As with most family matters however, it is perhaps best to view court as a last resort, due to the long term damage that it can cause to relationships. Often these cases can be resolved on an amicable basis, without the need to go to court and legal advice should be taken to discuss the options available.
Amanda Wilson is a specialist Family Law Solicitor. If you have further questions about child support and maintenance in Scotland please contact Amanda - firstname.lastname@example.org or call 01382 229111.