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Child maintenance

Child maintenance is paid by one spouse to the other after divorce, but what can you expect to pay?

Following a divorce, dissolution or separation, it is important to ensure that any children from that relationship are provided for. This often comes in the form of child maintenance, which is paid from one party to the other. Several factors influence the level you can expect to pay or receive, but the court’s priority is always the welfare of the child.

It’s tough to know how much money this will mean in your own case, but Stowe can help. We have a team of family lawyers who are well-versed in this complicated area of the law and they can help guide you through it to achieve the best possible result for everyone concerned, especially the children.

To speak to a specialist regarding maintenance arrangements, click here.

Private agreements for child maintenance

You can avoid a stressful and costly court battle over maintenance if you and your former partner can agree on child maintenance levels. This can be done by negotiating between the former partners or through your solicitor. There are benefits to such an arrangement other than the avoidance of a court battle. For example, neither party will have to pay Child Maintenance Service fees. You can also change the maintenance rates by agreement if your, or the other parent’s, circumstances change.

However, arrangements for child maintenance made this way are not legally enforceable. So, if the non-resident parent decides to reduce or stop their maintenance payments altogether there is nothing you can do to force them to stick to the initial agreement.

To arrange expert guidance on alternatives to court click here.

Applications for child maintenance through the Child Maintenance Service

If you cannot agree on arrangements for child maintenance with your former partner, you can make an application for child maintenance through the Child Maintenance Service (CMS). This is a government-run service to arrange and collect child maintenance from non-resident parents which replaced the now-defunct Child Support Agency (CSA).

Applications to the courts for child maintenance

If you can agree on how your assets will be divided and how much maintenance will be paid following a divorce or dissolution of a civil partnership, you can apply to court to have this agreement turned into a consent order. This way, if your former partner refuses to pay the maintenance agreed in the consent order, the Court has powers to enforce it. However, after 12 months of the consent order being in place, either parent can ‘opt-out’ of the agreement and choose to go through the CMS if they would prefer.

In certain limited circumstances you may be able to seek orders from the Court under Schedule 1 of the Children Act 1989 (CA). This can be done in addition to seeking maintenance through the CMS, or if a CMS assessment is unavailable.

  • These circumstances include:
    • When the non-resident parent lives abroad
    • When the income of the non-resident parent is greater than the statutory scheme’s upper limit (currently at £3,000 per week before income tax and national insurance)
    • When the application concerns costs for a child’s education or to support a child with a disability
    • When the resident parent is seeking a sum of money for something like the provision of a home for the child

    The legislation that deals with these kinds of issues is the Children Act 1989. Under this Act, you can apply to the court for maintenance payments, a lump sum or the transfer of property into your sole name. When the court has to rule on an application, they will consider all the circumstances of the case. The primary concern will always be the welfare of the child but the following factors may also affect the final decision:

    Each party’s income, earning capacity, property and financial resources. This will be considered as they are at the time and what they could be in the future:

    • Each party’s financial needs, obligations and responsibilities. Similarly, this will be taken under consideration for the present circumstances and the future possibilities
    • The child’s financial needs
    • The child’s possible income, earning capacity, property or financial resources
    • Does the child have a physical or mental disability?
    • How is the child (or expected to be) educated?

    Any financial provision that the court orders will last until your child turns 18 years old. However, there are exceptions to this rule. For example, maintenance can continue if the child in question is, or would be, in full time education or training or because they have a disability and require further support.

Child maintenance from someone living abroad

As detailed above, you may be able to secure child maintenance from a non-resident parent living abroad if you apply to the Courts under Schedule 1 of the Children Act 1989.

The CSA and CMS only deal with applications for child maintenance where both parents are habitually resident in the UK, but there are certain exceptions to this rule. These include cases where one of the parents is working abroad for the British government (as a diplomat, for example), the Armed Forces, a UK-based company or on secondment for certain organisations (such as a local authority).

You or the non-resident parent are considered ‘habitually resident’ in the UK if you are allowed to live here, have made it your home and intend to continue living in this country for the time being. However, it is possible for someone to be declared habitually resident in more than one country at a time.

There are arrangements in place between the UK and over 100 countries and overseas territories which enable someone from one jurisdiction (such as England and Wales) to claim maintenance from someone living in another. The process by which UK court orders can be registered and enforced by authorities in other countries is called the Reciprocal Enforcement of Maintenance Orders (REMO).

Domestic abuse and private arrangements

Private agreements may not be appropriate or safe if you have experienced domestic abuse prior to, or since, the end of your relationship. In these circumstances, it may be a safer bet to ask the Child Maintenance Service to arrange and collect the maintenance on your behalf.

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