Mar 22

Child Maintenance – things you should know

Written by Carmelita Ardren
Head of Family, Children and Divorce

DDI: 01423 724 639
M: 07854 312652
E: carmelita.ardren@raworths.co.uk

Child maintenance is something all parents going through a separation need to deal with, regardless of whether you are married or cohabiting.

If you are married, then you have a choice as to how you deal with child maintenance, whether it be through an agreed court order or via the Child Maintenance Service (CMS). If you are not married, then a child maintenance court order is not normally an option for you.

The Child Maintenance Service (CMS) and it predecessors were designed to remove the discretionary role of the court in the area of child maintenance payments. The aim was to standardise it using a matrix of ‘gross income X number of children X regular overnight stays’.

Whilst the rules have evolved over the years, the basic principal has remained, that being that the parent who does not live with the children Non-Resident Parent (NRP), pays a sum to the resident parent, Parent With Care (PWC).

It can be a very complex system to navigate if there are unusual features to your case. In 2012 the child maintenance service (CMS) changed the emphasis to encourage parents to agree matters between themselves (also known as a Child Maintenance Arrangement) or face ‘collection fees’ which would be an added cost for a reluctant payer and further fees are deducted from the recipient.

However, whilst simplifying the child maintenance system there are still some pitfalls to watch out for.

How much am I entitled to?

If you are newly separated and know the non-resident parent’s gross income there is a website you can check to give an indicative figure of what the child maintenance figure might be www.cmoptions.org.

This is designed to help you to agree matters with your former partner without ever darkening the doors of the CMS. This amount is the baseline figure to pay for essentials. You can, of course, agree a different figure to take into account other “enrichment” activities like music lessons or sports on top, but if there is no agreement then the baseline figure is what you are “entitled to” as the parent with care or pay if you are the non-resident parent (unless you fall into the high net worth category see later).

What are the standard rules?

Beware of generic advice on child maintenance. To date, there has been three different sets of rules depending upon when your application was made. What you claim/pay will depend upon which system you fall under.

I‘ve been contacted by the CMS, what should I do?

If you get a letter from the CMS, act promptly! The clock is now ticking and you must find the time to reply. If you drag your heels an assessment can be made without the requested information that you will find difficult to challenge later.

What if my assessment is wrong?

If you think an assessment is wrong – check it thoroughly! If you have to communicate with the CMS make sure that you correspond by recorded postal delivery. You are unlikely to get a specific email address but if you do, use the delivery/read receipt function to record its receipt. Don’t just rely on the verbal indications given on the helpline. The CMS often rely on information that they obtain from HMRC about income but there are no guarantees that this is correct or current. If you are unhappy make sure that this is on record.

Are all income bearing assets relevant to the assessment?

If you are the non-resident parent you want to take advice about ‘realignment’ of income bearing assets which is perfectly legal. If you are the parent with care, check! Not all “realignments” fall outside the scope of the CMS assessment.

Can I just pay my partner cash?

Even if you do agree the level of payment, beware of paying in cash even if it is to the parent with care’s direct bank account. Get the agreement in writing and signed by you both to confirm what this money is for. A template written agreement can be found on the CMS options website.

My child has finished secondary school, do I still need to pay maintenance?

Child maintenance is paid to the parent with care for the benefit of the children until they reach the age of 18 or cease secondary ‘non-advanced’ education, whichever is the later. This could mean that it continues to be paid until the child reaches 20 in certain circumstances. Whether courses qualify as ‘non-advanced’ is determined by the nature of that course, this can cover some apprenticeships and even working if there is an element of training of at least 12 hours a week. Always important to check.

Is there a cap on maintenance payments? My ex-partner could afford to pay more.

If the non-resident parent’s gross income exceeds £3000 per week you could apply to the court for a “top order”, over and above the maximum CMS maintenance assessment through the court. It is very important that you seek advice if you think this might apply to you as there could be other applications that you should be making at the same time.

What if we share time with the children? Does anyone pay maintenance?

If you share the care of the children equally in all respects, the rules provide that maintenance is not payable either way. In practice this does not just mean equal nights with each parent but a genuine shared care arrangement in all areas. It is really important that the normal day to day arrangements for the child(ren) are dictated by reference to their best interests. This should be the premise for child maintenance and not the other way round. In practice, a genuine equality of care arrangement rarely happens.

So what about university? Do children remain financially dependant then?

The answer is not so simple. The CMS does not cover degree level education. If you are not married then the only course of action is application by the adult child under Schedule 1 of the Children Act for maintenance which, from experience, those children are reluctant to pursue.

Advanced education can, of course, be covered by agreement in a matrimonial order if you are getting divorced. Please note however that there is also a gap in the procedure. If there is a child maintenance order in force for a child up to their 16^th birthday to cover only secondary education, they cannot make an application under Schedule 1 above. It is really important that you get specialist advice asap if this applies to you before the child reaches 16. There may be a new agreement put in place or an application that could be made to continue maintenance to cover university education.

Child Maintenance in most cases, forms the very foundation of financial provision for children when their parents split up and it is crucial to get it right.

In most cases the CMS forms the basis for the level of payment but the court still retains some jurisdiction if certain conditions are met, so it is important to get specialist advice as soon as you can.

Published on 1 March 2022