Labour MP Deborah Schembri this evening highlighted points of the Family Law which need to be changed to make life easier for separated couples and, especially, for their children.

Speaking in Parliament on the adjournment, Dr Schembri said the right for maintenance payments was the right of the child, not the right of the parents. Maintenance was meant to enable the children to live a life which was as close as possible to the normal before the parents separated.  

There was fixed maintenance, usually paid every month or four weeks, which went for the child’s basic needs, and an addition payment for half of expenses on the child’s health and education.

One problem was how to calculate maintenance. There were situations where fathers (or mothers) who were genuinely on a very low income were being brought into a situation where the amounts of maintenance they were required to pay left then with insufficient amounts for them to get by. People on a minimum wage or social benefits, receiving some €600 or €700 per month but who had two children were being required to pay some €450 in maintenance plus have the costs for education and health. How could they get by with the remainder? 

While the children’s welfare was of the utmost importance, in the calculation of maintenance if was also important to ensure that the parent who had to pay maintenance would be allowed enough money to get by.

Dr Schembri stressed that her comments did not apply to high income people who hid their income to avoid maintenance.  

On the other hand, she said, there was a situation of people with a substantial income who worked as self-employed and avoided paying the necessary maintenance because the courts calculated maintenance on the basis of the taxes they paid – and often this did not give the true picture.

Some children were being left with low maintenance by parents who could give them more. The problem was particularly evident in agreed separations where parents could not be forced to produce bank statements.  Many women did not know how much their husband really earned and how much they had in the bank.  

This, Dr Schembri said, was the time to discuss how maintenance was calculated by the courts. It was also time to review the procedure about having half costs for health and education paid apart from ordinary maintenance.

While it was a crime not to pay maintenance regularly, not paying half the cost of health and education was not seen in the same light, and if the abuse persisted, it was up to the parent having custody, usually the mother, to have to institute civil proceedings, costing time and money.  

The issue was also cumbersome. Receipts had to be produced to calculate the amount due as health and education payments. Parents having custody ending up having to produce a substantial amount of receipts at the end of the month – anything from receipts for school transport and outings to tissue packets as well as medicine.

And then there was nothing to show that the items were really bought for the child of the parent paying the maintenance, and not somebody else...  

COST OF LIVING 

Dr Schembri also observed that a number of marriage separation contracts did not include clauses to adjust maintenance on the basis of cost of living. Changes therefore had to be made through court applications. The government should consider a change in the law so that contracts not having these clauses would also be automatically adjusted according to the cost of living index.

ACCESS TO CHILDREN

Dr Schembri observed that it was a crime when a parent having custody did not make the children available to the other parent according to the access conditions.

But the same legal provisions did not apply when the parent having access did not call to pick up the children from the parent having custody. There were situations were children were prepared to be picked up by the other parent, who then never turned up. This created trauma for the children.

The children needed to be protected from whoever did not want them, Dr Schembri said. Parents who repeatedly, sometimes for  years, did not call for their children and did not show interest in them should not continue to expect the right of access.

SURNAMES 

Another issue where the law needed to be reviewed was about surnames. There were cases where fathers did not want anything to do with their children, but the children could not change their surname to at least add their mother’s surname.

In some cases, mothers after separation did not change their surname only because they did not want them to be different from their children’s.

A change of surname was only possible after a court case, something which needed to be reconsidered, Dr Schembri said.