Child Maintenance – what should every parent – paying or receiving it know?
We are frequently asked about the issue of child maintenance when parents separate. There is a lot of misinformation found online and parents do not often know what the Law says about Child Maintenance and how the CMS and individual agreements made in financial orders on divorce interact with the Law.
From November 2013, the Child Maintenance Service (CMS) replaced the Child Support Agency to have jurisdiction for all new claims for Child Maintenance. Key aspects of the service include:
- the application must be made via the Child Maintenance Service.
- You can agree your own maintenance but you cannot claim backdated maintenance for any period of time before your submit an application.
- You can do direct pay and pay no charges to the CMS.
- There is a charge of £20 for an application under the revised statutory scheme unless the applicant is under the age of 18 or is a victim of domestic abuse, plus (with effect from 11 August 2014):
- There is a 20% collection fee on top of the usual child maintenance amount for paying parents using the Collect and Pay service
- There is aa 4% collection fee deducted from the usual child maintenance amount for receiving parents using the Collect and Pay service, and
- There are a range of enforcement charges for paying parents who don’t pay child maintenance in full and on time—note that collection charges do not apply to where the Direct Pay method is used (ie where the parties make their own payment arrangements)
- Previously calculations had been based on net income and financial information obtained directly from parents, whereas under the revised scheme calculations are based on gross income and financial information obtained from Her Majesty’s Revenue & Customs (HMRC).
- The maintenance calculation may only be reassessed annually under the new scheme unless the income variation is 25% or more, or in cases involving long-term illness or redundancy
- Under the new scheme a child in full-time education will be eligible for child maintenance up to the age of 20—the age limit under the old scheme was 19
- The government has issued child maintenance application guidance, specifically addressing exemptions for victims of domestic abuse.
What is the ‘Meaning of “child” for the purposes of the 1991 Act
- The condition that must be satisfied if a person who has attained the age of 16 but not the age of 20 is to fall with the meaning of “child” is that the person is a qualifying young person as defined in section 142(2) of the Social Security Contributions and Benefits Act 1992.
- A person does not satisfy the condition referred to in paragraph (1) where the person is—
(a) engaged in remunerative work in any week during a prescribed period; or
(b) in receipt of other financial support in any week.
- If a person does not satisfy the condition of being a ‘qualifying young person’ such a person will not be a ‘child’ for the purposes of maintenance and will not be eligible for child support.
Financial Consent Orders on divorce and child maintenance:
If parents are married and need to resolve their financial arrangements when they divorce (as all divorcing parents should) they often wish to agree to the maintenance commitments they want to make for the benefit of the children of the family.
There is a crucial distinction between Child Maintenance (for the children) and spousal maintenance (for the spouse). The important point is that the CMS will retain jurisdiction in relation to assessing maintenance for children regardless of what the parties agree to in their consent order (so long as the children continue to fall within the scope of ‘child’ as per the meaning of child information set out above.)
This means that even if you agree an order that has provision for child maintenance that order is only enforceable for 12 months’ from the date it is made. After 12 months either parent can apply to the CMS for an assessment and that assessment will be binding.
Parents may wish to have more certainty than this and often a parent will need the order to define the arrangements in order to secure a mortgage. In that circumstance the parties will need to consider alternatives such as a global order to allow for the spousal element of the maintenance to be increased if a CMS assessment is carried out and is found to be less than the parties had agreed.
What about when children go to University?
- If the child maintenance has been paid under a Child Maintenance Service assessment (formerly the CSA) then the rules specify that the maintenance is paid until the child is 16 years of age, or until 20 if the child continues in full time education to the end of ‘A’ levels or the equivalent. This means that once the adult child has finished ‘A’ levels, the child maintenance ends.
- If the child maintenance has been included in their divorce settlement and include provisions for child maintenance that provide for university, frequently set out as being maintenance to the age of 18 or “full time tertiary education, limited to the first degree whichever shall be the last to occur” the following situation arises:
- If an adult child continues to live at home and study:
When child maintenance has been provided for in a Court order for child maintenance through University, and the adult child continues to live at home, then the parent who has in the past received child maintenance, should continue to receive the payments, unless the order states otherwise e.g. that the money is paid to the adult child.
- If an adult child moves away to university:
Where the adult child goes away to university, it is sensible to agree that maintenance should be paid directly to the child during the year, with the understanding that when the adult child returns home during the holidays, that he/she should pay “board and lodging” to the parent with whom they live. In this way, the paying parent knows the adult child is getting the entire benefit of the money. The parent who lives with the adult child during the holidays receives money for their out of pocket expense. It also encourages the adult child to start to assume financial responsibility for themselves.
- Over 18 but no financial support:
If an adult child finds themselves aged 18 but without any financial support for university, there is provision.
Under the Schedule 1 Children Act 1989, an adult child, in education, can make an application for maintenance (periodical payments) from one or both parents.
The application cannot be made if the parents are still living together in the same household, but only if there was no maintenance order in force with respect to him/her before immediately before their 16th birthday.
Such applications these days are rare predominately because of the availability of student loans to pay for both tuition and living costs, but also that an adult child is unlikely to get legal aid to fund their application.
The provisions for adult children after the age of 18 can be complex and so it is always better for the parents to agree on how they are going to support their children through university and until what stage.
We at Keelys are able to advise and guide any parent paying or receiving child maintenance and will carefully consider these entitlements / payments when advising on consent orders on divorce. Sometimes these issues are missed by solicitors who are negotiating settlements and including child maintenance. We will plan for now and the future. Contact us on:
If you have any queries or concerns please do contact one of our family team, whose details are below:
Jslateremail@example.com | 01543 420011
firstname.lastname@example.org | 01543 420031