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What is Child Maintenance and the Child Maintenance Service?

Child Maintenance is where payments are made to the resident parent by a non-resident parent for the benefit of the child. These payments are usually made monthly. The parent with whom the child resides will be the parent who receives maintenance. Child maintenance is payable even if the parents are not married. Child maintenance is different from spousal maintenance which can be claimed separately. This article will explain how to calculate child maintenance and what rules apply to you.

The Child Maintenance Service (CMS) is a government body that helps decide the percentage of gross income that should be paid to the primary carer of the child.
The CMS will help if the parents live in England or Wales. If one parent lives abroad, the CMS cannot help with child maintenance claims. Instead, the parent claiming maintenance must apply to the court. Often maintenance can be agreed through solicitor negotiations, mediation or direct discussions between parents. The agreement can then be drafted in to a court order which is approved by a judge and becomes binding on the paying party.

Who do the CMS calculations apply to?

Either parent can make an application to the CMS. This happens if parents cannot come to an agreement themselves. Maintenance will be awarded by the CMS where payments are for a child under the age of 18, or under the age of 20 if they are in full-time education. If the parents of the child are still living together, the CMS cannot make a child maintenance calculation.

How to calculate Child Maintenance

When considering how to calculate child maintenance through the CMS, numerous factors are taken in to account, such as:
– The paying party’s gross income
– The number of children the maintenance will be for
– How often the children stay with the paying party
– The number of any other children that the paying party is responsible for.

If your spouse is a high earner, or lives overseas, the CMS may not be appropriate for calculating maintenance. Speak to our experienced team for advice on the maintenance rules that apply in those situations.

Is going through the CMS necessary?

Going through the CMS is often the preferred route, but it is not necessary. Reaching an informal agreement with your former partner can be cost-effective and efficient. This is referred to as a ‘family-based arrangement’. The CMS calculator is used to work out what payments would be made. If one of the parents does not follow the agreement, an application would have to be made by the other parent to the CMS. This would allow the child maintenance to be enforced.

You may have reached a maintenance agreement as part of your divorce. If you have, the agreement can be formalised in a court order. Be aware that after 12 months,  either party will then be able to apply to the CMS for a revised assessment. There are various methods to discourage an application to the CMS which our lawyers advise on.

When can the court step in instead of the CMS?

The Courts retain jurisdiction to order child maintenance in cases where:
– One parent or the child do not live in the UK
– The child is over 19 years old and still in full-time education or there are other circumstances that apply (such as disability)
– Top-up maintenance is required (where the CMS has made a maximum assessment because the paying party is earning over £3000 gross a week)
– School fees and orders for educational expenses

 

The court has the discretion to vary payments based on the circumstances.

Child maintenance from someone living abroad

An application can be made to Court under Schedule 1 of the Children Act 1989 to secure child maintenance payments from a non-resident parent living abroad. As mentioned above, the CMS only deal with applications for child maintenance where both parents are habitually resident in the UK, although there are exceptions.

The UK has arrangements with many countries and overseas territories that permit one party from one jurisdiction to claim maintenance from another party in another. The Reciprocal Enforcement of Maintenance Orders (REMO) is the process by which maintenance orders made by UK courts can be registered and enforced by courts or other authorities overseas.

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