Ensuring that children are properly provided for following a divorce is a very important concern of many of our clients and so we are often asked about child maintenance. Child maintenance provisions in a financial agreement require the non-resident parent to provide financial support for the benefit of the children to the children’s primary carer.
Complications arise because different aspects of child maintenance are governed either by the Child Maintenance Service (CMS) or the Court depending on the circumstances. Whilst an overview is given below, each situation is unique and it is important to seek legal advice when considering child maintenance arrangements.
Ordinary child maintenance is governed by the CMS. The CMS has a formula which it uses to calculate how much a non-resident parent must pay in child maintenance taking into account a range of factors such as the non-resident parent’s income, the number of nights a week they spend with the children, and whether they are responsible for any other dependent children. There is an online child maintenance calculator which can provide an indication of the level of child maintenance the CMS would order. It is important to note that the CMS only has jurisdiction if the child and parents are in the UK or working for a business based in the UK.
If parents reach an agreement between themselves on the appropriate level of child maintenance this can be included in a Consent Order (the financial agreement approved by the Court). However, this will only be binding for 12 months. After a period of 12 months, either party could make an application to have the child maintenance recalculated by the CMS, on the basis outlined above. Therefore, if you are in receipt of child maintenance it is important to remember that if the income of the parent paying child maintenance decreases they could make an application to the CMS for the recalculation of the child maintenance they are required to pay, which would most likely be reduced. There are mechanisms which can be used, depending on the circumstances, to try and ensure that when an agreement between parents about the amount of child maintenance which should be paid can be binding for longer than 12 months. However, these require careful drafting and legal advice.
The Court governs aspects of child maintenance such as ‘top up’ maintenance (additional maintenance when the non-resident parent has a very high income), not the CMS. The Court can also deal with the payment of school fees and university costs. Therefore, these issues can be dealt with by the Court or in an agreement between the parties and will remain binding rather than being surpassed by the jurisdiction of the CMS after 12 months.
Child maintenance is a very valuable source of financial support for the children’s primary carer following a divorce. It is therefore important to carefully consider the options available when reaching an agreement to ensure that the most appropriate method is used which best protects your children’s interests.