When parents separate, you both remain legally responsible for the financial costs of bringing up your children. If you are the parent who doesn’t have the children living with them day to day – sometimes called the “non-resident parent” - you will have an obligation to pay money to the other parent for the expenses of your children. This applies regardless of whether you see your children and whether you are, or not, married.
The payments that you make are called child maintenance, or child support.
What are your options for getting child maintenance?
There are three ways in which child maintenance can be arranged. The first is via a Family-Based Child Maintenance Arrangement. The second is via an application to the Child Maintenance Service (CMS). The third is by a way of a court order.
What is a Family-Based Child Maintenance Arrangement?
If you agree the amount of child maintenance to be paid, you can reach a private agreement with the other parent called a “family-based arrangement”. Whilst this may be a relatively easy way to arrange child maintenance, such an arrangement is not legally binding, so if the payments aren’t made, you won’t be able to enforce them against the non-resident parent.
If the non-resident parent doesn’t make the agreed payments under a Family Based Maintenance Arrangement, or if you can’t agree how much should be paid, then you should apply to the Child Maintenance Service (CMS).
What is the Child Maintenance Service (CMS)?
The Child Maintenance Service (“CMS”) is a government agency set up in 2012. It calculates how much child maintenance should be paid. It also has the capability to collect child maintenance from one parent and pay it out to the other.
It works on a formulaic approach, taking into account various factors including the number of children (including any other children the other non-resident parent is responsible for maintaining), their gross income, pension contributions and the number of nights that the children spend on average with them.
How does the CMS assess the level of payments?
Some people will be eligible for a nil or reduced rate (e.g. people on certain benefits or earning under £200 per week). For others, there is a basic rate for earnings between £200 and £800 gross per week before tax and national insurance (but after pension contributions). This is 12 per cent for one child, 16 per cent for two children and 19 per cent for three or more children.
If you are a higher rate tax payer/earner, then an extra 9 per cent will then be applied to the amount above £800 per week if there is one child, or an extra 12 per cent for two children and an extra 15 per cent for three or more children up to a maximum of £3,000 per week (£156,000 gross per year).
There is a reduction on the amount of maintenance payable if the child (or children) spends overnights with the non-resident parent, on a sliding scale depending on the number of overnight stays. There is a reduction of 1/7th for between 52 and 103 nights per year, 2/7ths for 104 to 155 and 3/7ths for 155 to 174 nights.
There is an incentive on parents to reach an agreement as to the level of child maintenance that is payable, because if the CMS are used to collect the maintenance on an ongoing basis then both the payer and receiving parent pay for using the service. If you want the CMS to collect the maintenance on an ongoing basis, then 4 per cent will be deducted from the amount received by the parent with care, and the payer will have to pay an additional 20 per cent on top of the assessed figure. Most parents use the CMS formula as a guide for what should be payable but agree the arrangements themselves.
You can use the government online calculator www.gov.uk/calculate-your-child-maintenance here to estimate how much you will have to pay.
What is the Child Support Agency (CSA)?
The Child Support Agency is the government agency which dealt with child support, as it was then called, before the introduction of the Child Maintenance Scheme in 2012. It no longer takes on new cases. The agency continues to manage existing cases which were initiated before 2012 and will continue to do so until they are phased out. The calculation of child support, as administered by the Child Support Agency, differs from the calculation of child maintenance as administered by the Child Maintenance Service.
When can you apply to the court for child maintenance?
In certain circumstances, you can apply to the court for child maintenance. You can apply if:
Court orders for child maintenance
Court orders for child maintenance are referred to as orders for “periodical payments.” They are usually expressed to be payable weekly or monthly. They can be varied at any time by the court, to increase or decrease the amount paid, if there is a change in circumstances.
Can I apply for spousal maintenance as well as child maintenance?
If you are married and going through a divorce, the courts can make separate orders for both spousal maintenance and, if there has been a maximum CMS assessment or one of the parents lives outside the UK, child maintenance. Any order will usually be incorporated in the body of the overall Divorce Financial Settlement order.
Sometimes the courts will make what is called a “global” order. This provides for an overall award of maintenance but allows for that award to be reduced by the amount of child maintenance paid under the CMS.
If you are not married, then you will not be able to apply for spousal maintenance but the courts have interpreted the needs of a child of high net worth non-marital parents in Schedule 1 claims generously.
When does child maintenance end?
The Child Maintenance Service is able to assess a child for maintenance so long as they are under the age of 16 or under the age of 20, but still in full-time education and living with a parent receiving child benefit for them.
Court orders for maintenance last in the first instance only until the child’s 18th birthday, but can be, and commonly are, expressed to last until the child finishes their full time education or training. They can even be extended beyond for the rest of their lives, if “special circumstances” justify the order continuing, such as a child suffering a disability which makes them dependant on others for the rest of their lives.