Child Maintenance – The Law and Your Responsibilities

The issue of child maintenance is typically one of the foremost concerns during any divorce or separation process. But what is it exactly? What legal rights and responsibilities are involved? Who should pay it and how much should they pay? What happens if payments aren't made? And what is the role of the Child Maintenance Service? This article aims to explain the basics of child maintenance.

Who has to pay child maintenance?

Firstly, all parents are required by law to contribute financially to the upkeep of their children, whether they are resident or non-resident with the child after separation or divorce. Generally, the parent who does not live with the children must pay an agreed, regular sum known as child maintenance. The amount can be agreed privately via a family arrangement or it will be calculated by the Child Maintenance Service. In some cases, a child maintenance schedule can be put in place through a court order.

Children in Divorce and Separation

What is a family arrangement?

Family-based arrangements can be reached independently between two parents without legal advice, mediation or court intervention. However, family arrangements for child maintenance are not legally binding or enforceable should the paying party default (not pay). They may be suitable in cases when parents are able to negotiate amicably and collaboratively. They are flexible and can be altered as and when situations change.

In certain cases family-based arrangements will not be suitable, especially if the paying parent is likely to default or disappear, so you should always discuss the ramifications of a family arrangement with your divorce lawyer.

What happens if we can’t agree on child maintenance?

When a family arrangement is not suitable or workable, or a non-resident parent has defaulted on the agreement, it will be necessary to use the Child Maintenance Service (CMS). This is the government body responsible for calculating and, when necessary, collecting the correct amount of child maintenance payable by parents who do not live with their children – it replaced the Child Support Agency in 2012.

It is not possible to make an application to the CMS without first discussing your situation with Child Maintenance Options, to see if you can achieve a family-based arrangement as an alternative. If a family-based arrangement is not suitable, Child Maintenance Options will explain how to apply to the CMS using the reference number they provide.

When you use the CMS service there will be various charges, although if you have experienced domestic violence these do not apply.

The CMS shares information with Her Majesty’s Revenue and Customs (HMRC) in order to find out the income of the “paying parent”, who will be contacted by the CMS as part of the process.

Payments are made to the “receiving parent”, either via “direct pay” (for situations in which both parents agree on how and when the money should be paid) or via “collect and pay” (for situations in which there may be some disagreement). It should be noted that in cases of “collect and pay” the paying parent must pay an additional 20 per cent of the calculated child maintenance.

If payments are not made on time or the paying parent refuses to pay, the CMS has powers to enforce payments.

How is child maintenance calculated?

The CMS calculates child maintenance based on the paying parent’s gross income, including pension payments and all other taxable income. This means that interest and dividends from assets, savings, property, as well as investment and rental income (known as unearned taxable income) are excluded from initial calculations; however, these can be taken into account on request.

The amount of child maintenance to be paid will depend on the level of income of the paying parent. Different rates will be applied as follows:

  • Default rate: When income is unknown a sum of £38 for one child, £51 for two children or £61 for three or more children will be payable.

Nil rate: This means that the parent has nothing to pay – for example, because they are under 16, or under 19 and in full-time non-tertiary education, or they earn less than £7 a week.

  • Flat-rate: When a parent has an income of less than £100 a week or claims certain benefits they will be expected to contribute £7 per week.
  • Reduced rate: The paying parent’s gross income is between £100.01 and £199.99 a week. The amount payable will be calculated according to the amount of earnings and other factors (see below).
  • Basic rate: This is calculated as a percentage of the paying parent’s gross income of between £200 and £3,000 per week and depends on other factors (see below).

The calculation also takes into account whether the paying parent pays child maintenance for other children and/or has children living with them (including the children of a new partner).

Another factor influencing the calculation is when care of the child or children is shared. For example, if the children stay with the paying parent for one night or more per week.

In cases of the basic rate, for non-resident parents with gross income of up to £800 per week, the calculation is as follows:

  • 12% for one child
  • 16% for two children
  • 19% for three children or more

For non-resident parents with an income of between £800 and £3,000 per week, the calculation is as follows:

  • 9% for one child
  • 12% for two children
  • 15% for three children or more

If the paying parent earns more than £3,000 per week, the parties will need to apply to the CMS so a gross weekly income calculation can be made and then they will need to apply to the family court for a child maintenance “top-up” order.

Visit the Money Advice Service website for more information.

Can the court make a decision on child maintenance?

If you are engaged in court proceedings in relation to a financial settlement on divorce or dissolution of a civil partnership and you have agreed a child maintenance payment schedule, you can apply to the court to turn this arrangement into a financial order – the court then has the power to enforce the order in the event of non-payment.

After 12 months of such an order being in place, if you no longer wish to comply, you have the option of opting out of the agreement. However, you will still be legally obliged to pay towards the upkeep of your children and you will be required to make an application to the Child Maintenance Service.

Furthermore, resident parents may be able to seek orders under the Children Act 1989 if the parent lives abroad or any of the following criteria are met:

  • The non-resident parent has an income of more than £3,000 per week before income tax and national insurance
  • The application is in relation to financial support for a child with specific educational needs or needs relating to a disability
  • Money is being sought with the purposes of providing a home for the child

Divorce, Family and Children Law Solicitors

Wellers’ family law solicitors work towards helping you make sense of your rights and responsibilities while all the time ensuring that needs of any children concerned are paramount.

Contact Wellers Law Group LLP today so that we can advise you as to your options in relation to child maintenance and divorce financial settlements . For more information regarding children and divorce, please download our free guide.

Call us on:

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