Senior associate Helena French discusses child maintenance support, including when it applies, who is responsible, exemptions, how it is calculated, applications, non-payment and the circumstances in which the court may intervene.
When a couple is separating, a key consideration is how they will meet the costs of any children they may have together–and who will be responsible for those costs.
In England, the position differs depending on whether the parents are married, and also depends on the income of the parent paying child maintenance. For most parents, whether married or unmarried, unless they are high earners (see below), the amount will be determined by the Child Maintenance Service (CMS).
Under the CMS, one parent is considered the ‘resident parent’–when the child spends more time with that parent–and the other parent is the ‘non-resident’ parent. This is the case even if the child lives part of their week with that parent. The non-resident parent will have an obligation to pay child maintenance to the resident parent.
When CMS applies
For most families, they will be exclusively under the jurisdiction of the CMS if the paying parent earns less than £156,000 gross (before tax and national insurance, but after pension contributions). This means that the family court is unable to make orders about child maintenance. The amount will be fixed by reference to the CMS formula.
The liability to pay child maintenance under the CMS only arises when the parents are living in different houses. This means a couple can be going through a divorce or separation while still living together and have no obligation to pay. The opposite also applies, that a couple may be living in separate homes and have a CMS liability even before they resolve their wider finances.
Child maintenance under the CMS is payable until the child finishes secondary education or turns 20, whichever is the earlier. This means there is no CMS jurisdiction to force a non-resident parent to pay child maintenance whilst the child is at university. If, however, they continue secondary education beyond the age of 18 (for example if retaking a year) then the requirement to pay continues.
Exceptions to the CMS
There are some exceptions where the CMS will not apply.
- If the non-resident parent is not living in the UK then the CMS does not apply and the family court would have jurisdiction.
- If the paying parent earns over £156,000 gross then the CMS does apply, but the parent receiving maintenance will obtain what is called a ‘maximum assessment’ which will give them the right to apply to court to ‘top up’ the CMS assessment.
- If there is an equal shared care arrangement (so there is no ‘non-resident’ parent). It is important to note that equal shared care is more than just having the same number of nights spent with each parent. The CMS will consider how much time is spent with the child, and can also consider if one parent does more of the care of the child, for example, who deals with the dentist or doctor’s appointments. In most cases there will be one parent considered to be resident and one considered to be non-resident, but there are cases where the care is genuinely equal. When considering if this is the case, there is a presumption that a parent receiving child benefit for the child is the resident parent. This is however a rebuttable presumption and evidence can be put forward to show that is not the case.
If equal shared care is found by the CMS, this means that there will be no child maintenance to pay. There is however some ambiguity as to whether this means a nil assessment, or the CMS declining jurisdiction – this ambiguity means it is unclear if the court could then make an order (see below).
Formula and how it is calculated
If the parents are within the jurisdiction of the CMS, then the amount of child maintenance payable is fairly simple. The CMS has a formula (which can be accessed using their online calculator here) which considers the income of the paying parent, but then reduces maintenance payable depending on how many overnights the child spends with the non-resident parent. It also takes account of whether there are any other children that the paying parent is responsible for.
Some parents wish to use payments towards a mortgage as counting as child maintenance. This is not possible if the payment is towards a property the paying parent owns or has an interest in. However, there are some expenses which can be factored in to reduce the payments owed. These include payments towards boarding school fees (only applicable where the child is boarding at the school and not school fees generally), and payments to a mortgage on a property where the resident parent and child live–as long as the paying parent does not have an interest in this. These expenses can be considered by CMS to re-calculate the maintenance payable but does not mean the paying parent can stop maintenance on the basis of these expenses being covered.
Applications to CMS and non-payment
If the parents agree the level of child maintenance, a formal application to CMS does not have to be made. Often, parents use the online calculator to work out how much should be paid and simply agree this between themselves.
The CMS may be needed is when there is no agreement as to the amount that should be paid (often due to disagreements as to the earnings of the paying parent), or where payment is not being made voluntarily.
A key area of dispute often is what income should be taken into account. Where a parent is employed on a PAYE basis this is fairly simple. If necessary, the CMS can contact HMRC to ascertain what their income is. The CMS formula can also take into account benefits or pension payments. It can be slightly more complex when a parent is self-employed. In this case, the CMS can consider the parents average weekly earnings, factoring in expenses.
A more complex situation can arise when a paying parent receives their income not from employment or self-employment, but passive assets such as rental income, or dividends. This is particularly key when someone works via a company and pays a smaller salary with most of their income coming from dividends. However, the CMS is able to take into account income from dividends and other earnings if an application is made for this.
If the paying parent does not agree to make child maintenance payments, the CMS can take payments directly from the paying parent and pay them to the receiving parent. It is important to note if this is necessary, CMS charge a fee for this service which affects both the amount paid and received.
When courts can intervene
As mentioned above, in most cases the CMS will have jurisdiction and it’s thus not necessary for the court to get involved. However, if the parents are married and going through a divorce, the family court can order child maintenance if the paying parent earns or is deemed to earn over the CMS maximum amount (provided you have obtained a maximum assessment), or is living abroad. Often the court will use an adjusted version of the CMS formula to work out the appropriate maintenance, but it does have flexibility and discretion to make different orders when appropriate.
Even when the parents are unmarried, if the paying parent earns over £156,000 and the CMS makes a maximum assessment, the other parent can apply under Schedule 1 of the Children Act 1989 for child maintenance.
Child maintenance can therefore be a complex area and it is important to take legal advice to see how this relates to each individual case.
Helena French is in the family and children team. She advises on a range of family matters arising from the breakdown of relationships or where there are disputes relating to children.
Get in touch
If you would like to speak with a member of the team you can contact our family and children solicitors by email, by telephone on +44 (0)20 3826 7520 or complete our enquiry form.
