Child Maintenance after a separation

What is child maintenance?

In the event of a separation between parents who have children, talking about the issue of child maintenance can be a contentious topic. A separation is a difficult time for not only the adults but also their children. It can result in a child’s life as they know it being turned upside down as a result of no longer living with one parent, or potentially having to move home and school. One parent may feel financially vulnerable while the other is concerned about how often they will see their child. Ensuring stability and security for a child post-separation will ensure that they do not suffer adversely. A key element in providing such stability and security is via the payment of child maintenance.

In the UK, child maintenance is the term given to describe a financial obligation owed from one parent to the other parent in order to assist with paying for a child’s or children’s day-to-day living costs. This includes food, clothing, extracurricular activities and other costs associated with caring for a child on a day-to-day basis. Under the Children (Scotland) Act 1995, a parent of a child who has parental rights and responsibilities has a legal obligation to maintain their child financially and ensure that they have somewhere to live.

In most cases post-separation there is a ‘paying parent’ and a ‘receiving parent’. A paying parent is the term used to describe the parent who does not have the main responsibility for the day-to-day care of the children. The receiving parent is the parent who has the main responsibility for caring for the children. In most cases, the paying parent would make payment of a sum periodically to the receiving parent. In the UK, Child Maintenance is regulated by the government body known as the Child Maintenance Service (CMS), formerly the Child Support Agency (CSA).

Who decides whether Child Maintenance is payable?

At the outset of a separation, the parents themselves are freely able to agree whether one parent should pay the other child maintenance. Both parents are also free to agree the amount of child maintenance payable and also for what length of time (for example when a child reaches the age of sixteen or until they finish higher education). This is encouraged by the government and if an agreement can be achieved between the parents they can enter a Child Maintenance Agreement, a Family-Based Arrangement or a Minute of Agreement.

What if we can’t agree on the level of Child Maintenance?

If two parents are not able to reach an agreement on the level of child maintenance which should be paid, it is quite often possible to reach an agreement with the assistance of the Child Maintenance Service, Family Mediation or a solicitor with a view to an Agreement being achieved.

To assist parents, the Child Maintenance Service has a free advice website known as Child Maintenance Options which outlines a host of helpful information and guidance on addressing child maintenance. They also have a free helpline for queries on their website. Their website includes a helpful calculator for parents to assess the level of child maintenance legally payable in light of their circumstances. www.cmoptions.org/en/calculator

Should the above options prove unsuccessful, one parent may contact the Child Maintenance Service to request that they conduct an assessment.

How is the amount of Child Maintenance payable determined?

The level of child maintenance is determined by the Child Maintenance Service on a number of factors including:

(1) The number of children the parties have.

(2) The gross income of the paying parent per week or whether they are in receipt of benefits.

(3) Whether the paying parent has any other children living with them.

(4) The number of nights each year the paying parent has their child staying with them.

The amount of child maintenance payable will vary depending on the specific numbers in relation to the above factors. The main determining factors for the amount of child maintenance payable is the amount of nights a parent has a child each year and also the extent of their gross earnings (before tax). The more nights per year a paying parent has a child, the less child maintenance would be payable.

In situations where parents are operating a shared care arrangement or 50/50 care, no child maintenance would be due to or by either parent.

If a party has a change of circumstances such as an income raise of 25% or more or no income, then the Child Maintenance Service must be notified.

How long is statutory child maintenance payable?

Child maintenance is legally payable for a child until they reach the age of sixteen if they go into full-time employment or up to the age of 20 if they continue in full-time education up to A-Level/Higher/Advanced Higher or equivalent.

Child maintenance can also stop if the child stops being eligible for child benefit, the parent being paid stops being the child’s main carer, the parent being paid doesn’t want child maintenance any longer, either parent dies or the payable parent is assessed as nil rate due to being a student or a prisoner.

What happens if the paying parent refuses to pay?

An application can be made to the Child Maintenance Service and they would conduct an assessment in light of the paying parent’s gross income while also taking into account the above factors. Once an application has been made, the paying parent will be informed of the amount payable unless there is a change in circumstances requiring a reassessment. In the event the paying parent fails to pay, arrears would usually begin accruing on unpaid child maintenance from the date of the application being made. In the event that the paying parent refuses to cooperate with the Child Maintenance Service, the Child Maintenance Service is able to contact HM Revenue & Customs to determine their gross income or whether they receive benefits. CMS apply five different rates/categories depending on the parent’s gross income and the weekly amount payable. The rates cover all scenarios including where income is unknown or not provided, and up to income of £3,000 or more per week. £3,000 per week is the upper limit based on the Child Maintenance Service formula. If the paying parent’s income is in excess of £3,000, the receiving parent can apply to the courts for extra child maintenance.

The Child Maintenance Service charges a £20 application fee (unless you are under 19 or a victim of domestic abuse). If parents are unable to agree payment methods among themselves, the Child Maintenance Service offer a collect-and-pay service, where they will collect the amount of child maintenance from the paying parent’s account and transfer it to the receiving parent. For providing this service the Child Maintenance Service charge an additional 20% of the child maintenance payment to the paying parent and deduct 4% from the amount the receiving parent would be due to receive. Therefore, both parents are in effect losing money for using the service. The government is keen for parents to reach an agreement between themselves and include such charges as a deterrent.

An arrangement or assessment through the Child Maintenance Service is legally binding on parents. If the paying parent refuses to pay, the Child Maintenance Service can take action on behalf of the receiving parent. The Child Maintenance Service has the power to force the sale of property or belongings, register child maintenance arrears as a debt via the courts, confiscate a driving licence or even imprisonment. The service will also add additional charges if they are required to seek to enforce payment of child maintenance.

Problems in receiving appropriate levels of child maintenance

Difficulties can arise in situations whereby the paying parent may work abroad or offshore for a non-UK company. Furthermore, self-employed individuals may structure their annual income in such a way which appears to be low for child maintenance calculations resulting in a lesser amount of child maintenance being payable.

If any false information is given to the Child Maintenance Service, then the party can be taken to Court and fined.

An alternative option – Aliment

However, under section 1 of the Family Law (Scotland) Act 1985, a parent has an obligation of aliment to a child of their family to provide such support as is reasonable in the circumstances. For the Family Law (Scotland) Act 1985, a ‘child’ means a person under the age of 18 years or over that age and under the age of 25 years who is reasonably and appropriately undergoing instruction at an educational establishment, or training for employment for a trade, progression or vocation. It should however acknowledge that an obligation of aliment is distinct from the statutory obligation of child maintenance.

To seek aliment, a court action would need to be raised in the Sheriff Court or the Court of Session. The action may be brought by the person to whom aliment is owed (including a child), the curator bonis (legal representative) of an incapacitated child, or by a parent or guardian on behalf of a child. Unlike child maintenance there are no thresholds on the amount of aliment payable in respect of a child; however, the court would base the amount payable upon the needs and resources of the parties, the earning capacity of the parties and all other circumstances of the case.

An order of Aliment awarded by a Scottish Court can also be enforced by way of a Reciprocal Enforcement of Maintenance Orders that can be applied for where the paying parent is living abroad in specified countries. Similarly, if parents have entered a Minute of Agreement and the paying parent moves abroad or stops paying child maintenance, the terms of a Minute of Agreement may also be enforced abroad in certain countries. A solicitor can assist with seeking aliment in relation to a child and also in enforcing an order of Aliment if necessary.

Achieving a positive outcome

Child Maintenance is one of many factors that can become a contentious subject following a separation. This can unfortunately result in tension between parents if not dealt with appropriately. This can undermine the success of future discussions on contact arrangements for children and other financial matters which may require to be resolved on separation.

Obtaining legal advice from an experienced family law solicitor at the outset can greatly assist in overcoming uncertainty for both parents. Addressing child maintenance early can ensure both parents feel reassured their children will be financially secure.