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  • 31 May 2023

    Child maintenance agreements in a divorce or separation | What do you need to know?

    Safety and financial security are top of mind for any parent going through a divorce. If a marriage didn’t work out between you and your partner, the last person you want to suffer as a result thereof, is your child. According to ONS divorce rate statistics, in 2021 there were 111,934 opposite-sex divorces, which is an increase of 9.3% from 2020 and 4.0% from 2019 divorces. This was the highest number seen since 2013. 

    For couples considering divorce who have children, often their first thought is, what happens to our child? 

    Are you aware of child maintenance agreements in a divorce? Find out everything you need to know to make sure that your child is provided for.

    What is child maintenance?

    When a couple divorces or separate and has a child together, child maintenance covers how the child’s living costs will be paid when one parent does not live with the child.  It’s a legal requirement to have a child maintenance arrangement in place if your child is under the age of 16 or the age of 20 if they are still in full-time education studying for A-levels, or an equivalent.

    What should child maintenance cover?

    Child maintenance payments are decided and agreed on to cover the child's everyday needs, such as food, clothing and housing. Even if parents do not see the child they are legally obliged to pay for maintenance. 

    The primary carer of a child is entitled to receive the child's maintenance. Usually, the primary carer is a parent, however, it can also include other family members, such as grandparents, or guardians.

    Arrangements for child maintenance

    There are several types of arrangements that can be made for paying child maintenance, depending on your circumstances.

    Arranging maintenance voluntarily with each other

    If you and your ex-partner have an amicable relationship, it’s best to arrange child maintenance directly with each other, this is called making a ‘family-based’ arrangement. 

    There are no set rules to follow for a private arrangement. You can include whatever you want in it as long as you both agree to the payments and terms. For example, you could agree that one of you will cover the cost of a holiday or school uniforms and stationery instead of making regular monthly payments. 

    It’s important to remain realistic about the amount or one parent might end up paying a larger share. 

    It’s a good idea to keep a written log of the arrangements that have been agreed, and keep note of any changes and discussions, this will help if any disagreements arise in future.

    When getting a divorce or ending a civil partnership

    You might be able to make formal arrangements for child maintenance as part of the process for legally ending your relationship. You can request the court to put this arrangement in a ‘consent order’. 

    Once a consent order has been put in place, you and your ex-partner can usually avoid going to court hearings if you agree on how you’ll financially support your children. 

    It is wise to use a legal advisor, like Hegarty if you want to make your agreement legally binding.

    What happens if a consent order is broken and the parent refuses to pay child maintenance?

    If a consent order is broken and a parent refuses to pay child maintenance, the receiving parent could launch a civil legal claim. However, this option is expensive, and is usually only advised in high income cases, as the issue of non-payment may still remain if the paying parent refuses to comply with the judgment. Instead, you as the receiving parent, can ask the Child Maintenance Service (CMS), which has wide-ranging powers of enforcement, to secure payment of the child maintenance. 

    Under a liability order, the CMS can take legal action against the payment parent to recover the child maintenance debt including negotiating payment by using an ‘order for sale’ and bailiffs to seize belongings, assets or property, revoke the paying parent’s passport or driving licence, place the paying parent’s debt on the Register of Judgements, Orders and Fines will affect their ability to get a mortgage or other loan, and in certain circumstances can send the paying parent to prison. 

    How the CMS will act is dependent on whether a private child maintenance agreement was made or if the agreement was arranged through the CMS.

    If you cannot agree on everything relating to child maintenance

    You can ask a court to decide anything you cannot agree after mediation or getting other help

    To do this, you must first prove that you’ve attended a meeting to see if mediation is right for you before applying to a court. In some cases, where there has been domestic abuse or social services have been involved, this is not needed.

    Using Child maintenance service

    If you and your ex-partner can’t agree to child maintenance payments, you can contact the Child Maintenance Service (CMS)

    The CMS uses a formula to calculate the amount of child maintenance that should be paid. This calculation is based on several factors, including the income of both parents and the number of children. If you need them to, they can also arrange how and when the money should be paid to you. 

    Once the CMS has calculated the amount of child maintenance, it will issue a "maintenance calculation" to both parents. This calculation sets out the amount of child maintenance and when it should be paid. If both parents agree with the calculation, they can make their own arrangements for payment. If they are unable to agree, the CMS can collect the child maintenance on behalf of the parent who is due to receive it. 

    There are two types of child maintenance payment arrangements available in the UK, Direct Pay and Collect and Pay. Direct Pay is a voluntary arrangement where the parents agree on the amount of child maintenance to be paid and the paying parent pays the receiving parent directly. Collect and Pay is where the paying parent pays the CMS, who then passes the money on to the receiving parent. This option is usually chosen when there is a history of non-payment or if the paying parent lives abroad.

    What if parents do not pay for child maintenance?

    The CMS can take enforcement action against parents who do not make the required child maintenance payments. This can include deducting money from wages or benefits, or even taking legal action. Parents who are found to have deliberately avoided paying child maintenance can be imprisoned. 

    Child maintenance can also be reviewed and changed if there is a notable change in circumstances, such as a change in income or the number of children. Parents can also apply to the CMS to have their child maintenance reviewed if they believe the current arrangement is no longer fair. 

    It is important for parents to remember that child maintenance is for the benefit of the child and is separate from any financial settlement made in relation to property or assets.

    Who is exempt from paying child maintenance?

    In the UK, there are certain situations in which a parent may be exempt from paying child maintenance. These include:

    • Low income: If the paying parent is on a low income, they may be eligible for a reduced rate of child maintenance or may be exempt from paying altogether.
    • Incapacity: If the paying parent is unable to work due to a physical or mental incapacity, they may be exempt from paying child maintenance.
    • Caring responsibilities: If the paying parent is the main carer for another person, such as a disabled child or an elderly parent, they may be eligible for a reduced rate of child maintenance.
    • Shared care: If the child spends a significant amount of time living with both parents, the parent who has the child less may be eligible for a reduced rate of child maintenance or may be exempt from paying altogether.
    • Financial hardship: If the paying parent is experiencing financial hardship, such as homelessness or debt, they may be eligible for a reduced rate of child maintenance.

    It's important to note that these exemptions or reductions are not automatic, and parents must apply to the Child Maintenance Service (CMS) to have their case considered. The CMS will then assess the parent's circumstances and decide on the appropriate level of child maintenance.

    How is the amount of maintenance determined?

    If you and your partner can’t come to an agreement on how much should be paid, you can request the Child Maintenance Service to calculate the amount for you. 

    They will consider the following:

    • how many children you have
    • the paying parent’s income
    • how much time the children spend with the paying parent
    • whether the paying parent is paying child maintenance for any other children.

    There are different child maintenance rates according to the paying parent’s gross weekly income – this relates to how much you receive before deductions such as tax and National Insurance are taken off your income. 

    The amount of child maintenance that should be paid is determined by the Child Maintenance Service (CMS). The CMS uses a formula to calculate the amount of child maintenance that should be paid, based on the income of both parents and the number of children. Gov.co.uk clearly states the formula and factors taken into account like the income of the non-resident parent, the number of children, and the number of nights that the children spend with the non-resident parent.

    The formula used by the CMS is as follows:

    • For the first £7,000 of the non-resident parent's gross weekly income, the non-resident parent will pay a set percentage of their gross weekly income, depending on the number of children they are paying for.
    • For the non-resident parent's gross weekly income above £7,000, the non-resident parent will pay a set percentage of their gross weekly income, depending on the number of children they are paying for, less a fixed amount.

    The percentage of the non-resident parent's income that should be paid as child maintenance varies depending on the number of children:

    • For one child, 12% of gross weekly income
    • For two children, 16% of gross weekly income
    • For three or more children, 19% of gross weekly income

    The fixed amount that is subtracted from the non-resident parent's gross weekly income above £7,000 is:

    • £3 for one child
    • £7 for two children
    • £9 for three or more children

    The CMS formula may not be appropriate in all cases, particularly when the paying parent's income is extremely high or low, or if the paying parent has significant business or property assets that are not considered by the formula. In such cases parents may choose to use the Family Based Arrangements. This agreement can be made without the need for legal representation or court action and is often considered as a more flexible and amicable way of arranging child maintenance.

    Avoiding paying child maintenance

    It’s difficult to determine the exact number of people who avoid paying child maintenance in the UK. According to recent statistics, the total number of parents in arrears has increased by over 42,000 in the last five years, rising from 51,500 in March 2017 to 94,000 in March 2022. Additionally, there are some parents who are not paying child maintenance but are not captured by the CMS statistics. These parents may have made private arrangements with the other parent or may be avoiding paying child maintenance. 

    The government has taken steps to try to combat non-payment of child maintenance, including the introduction of the Child Maintenance Service (CMS) which has the power to deduct money from wages or benefits, or even take legal action against parents who do not make the required child maintenance payments. The government also has a Child Maintenance Penalty scheme which fines parents who deliberately avoid paying child maintenance. 

    However, it's important to note that the non-payment of child maintenance is a complex issue, and there are several reasons why a parent may not be able to pay, including unemployment, low income, and financial hardship. The government and the CMS have a range of services available to help parents who are struggling to pay child maintenance, including reduced rates of child maintenance for low-income parents and the Direct Pay scheme which allows parents to make their own arrangements for child maintenance payments.

    What is the process, step by step if a parent stops paying maintenance for their child?

    The process for dealing with a parent who stops paying child maintenance in the UK is as follows:

    1. Contact the Child Maintenance Service (CMS): If a parent stops paying child maintenance, the first step is to contact the CMS. They can help to establish why the payments have stopped and can provide advice on what to do next.
    2. Request a review of the maintenance calculation: If the non-paying parent is experiencing financial difficulties or has had a change in circumstances, the CMS can review the maintenance calculation and adjust the amount of child maintenance that should be paid.
    3. Reminder Notice: If the non-paying parent fails to pay, the CMS will issue a Reminder Notice. This is a formal notice that the parent has failed to make the required payment and reminds them of their obligation to pay.
    4. Enforcement action: If the parent continues to fail to make payments, the CMS can take enforcement action. This can include deducting money from wages or benefits, or even taking legal action.
    5. Collection and enforcement agencies: The CMS can also refer the case to a collection and enforcement agency, who will take action to recover the unpaid child maintenance.
    6. Penalty: If the non-paying parent is found to have deliberately avoided paying child maintenance, they may be subject to a fine under the Child Maintenance Penalty scheme.
    7. Court action: If all the above steps fail, the CMS can apply for a court order for the payment of child maintenance. This can result in legal proceedings and if the non-paying parent is found in contempt of court, it may result in a prison sentence.

    It's important to note that the CMS can only act on the cases that have been referred to them, and parents who have made private arrangements may not be covered by the CMS. In such cases the receiving parent may need to seek legal advice to enforce their rights.

    Will I need a solicitor to secure a child maintenance arrangement in a divorce?

    It is not always necessary to use a solicitor to secure a child maintenance arrangement during a divorce. The CMS can aid parents who are unable to come to an agreement on child maintenance. Parents can also use the Family Based Arrangements which can be made without the need for legal representation or court action. 

    However, if the parents are unable to reach an agreement, or if one parent is not cooperating, an experienced solicitor, like Hegarty Solicitors, may be needed to help secure a child maintenance arrangement. 

    Divorce proceedings in the UK can be complex, and parents may need to seek legal advice especially if there are issues related to financial settlements, property, international child maintenance or assets, or if there are concerns about the welfare of the children. In addition, if a parent is looking to change an existing child maintenance agreement, legal representation is highly recommended to ensure that the process is done correctly.

    How we can help you

    Child maintenance agreements are intended to ensure that children are financially supported by both parents even after separation and divorce.  Divorce proceedings can get complex and if not handled correctly, the effects can be damaging to the relationship between you and your ex-partner. 

    Legal representation may be needed if parents are unable to reach an agreement or if the case is complex. If you need any legal advice, do not hesitate to contact us. We understand how difficult and stressful it can be when dealing with issues that affect your children, particularly if you are going through a divorce. 

    Our Family Fixed Fee appointments allow you to discuss your case and find out what your options are before you decide whether to take further action.

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