3.5.5: Severability (registering some clauses in an order and not others)

Context

A court order or court-registered maintenance agreement may contain clauses that cannot be registered under the Child Support legislation. CSA will register the acceptable parts of the court order or agreement only when the clauses are severable.

Legislative reference

Sections 17 and 18 Child Support (Registration and Collection) Act 1988

Explanation

A court order or court-registered maintenance agreement which contains clauses that can be accepted and registered under the Child Support legislation may also contain other clauses that cannot. CSA will register the acceptable parts of the court order or agreement only when the clauses are 'severable', (i.e. when registering those clauses does not change the essential nature of the order agreement). CSA will refuse the application for registration of the entire order if the other clauses are not severable.

A court order may include a clause discharging an original order for maintenance and a clause providing for payments at a different rate from that stated in the original order. The intention of the later order is to vary the rate of payment of the earlier order rather than to discharge the maintenance liability entirely. If CSA cannot give effect to the clause providing for payment of child maintenance, for example because it was not for a periodic amount payable to the payee, then it cannot give effect to the clause which discharges the original orders.

Where a court order provides for a periodic amount of maintenance but also contains a clause regarding exchange of property, CSA can register the periodic amount of maintenance and 'sever' it from the property clause.

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Version 1.0

Issued 1 October 2002

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