Where parents of a child are not living together, whether they are married, divorced, had their same-sex civil partnership dissolved, cohabited or never lived together, the question of maintenance arises. Children are expensive (“Lifetime cost of bringing up child £186,000 - and rising” The Guardian, 7 December 2007).
If both parents live in the UK the court does not have power to deal with basic child maintenance (but can deal with other financial provision for children including maintenance to cover school fees). Instead you are encouraged to come to an agreement between you. If you cannot agree, the Child Support Agency (CSA, which will gradually be replaced by the Child Maintenance Service, CSM) will make an assessment. If you agree to a maintenance figure, the court can approve the agreement in an order. However, either parent could still go to the CSA or CMS once the order is one year old. If there is no order, either parent can apply to the CSA or CMS at any time.
If one of you lives abroad, the court can deal with child maintenance and the CSA or CMS cannot make an assessment. If the parents live in different countries, there are rules where you can apply for child maintenance and how that is then recognised in the other country.
Below you will find answers to the following questions:
Someone is a child for the CSA or CMS if they are under 16 or under 19 and in full-time education doing a course up to A-level or equivalent.
Someone is a parent of a child for the CSA or CMS only if they are the mother or father of the child. This includes adoptive parents and parents with parental orders after surrogacy, but not step-parents, whether they are or were married or civil partners of the other parent. However, in England and Wales step-parents who are or were married or civil partners of the parent with whom the child lives may be ordered by a court to pay maintenance if the child was treated as a child of the family. Scots law is different and you will need to get advice from a lawyer in Scotland.
If you agree your maintenance payments between you, the court can approve the agreement in an order. However, under current legislation either parent could still go to the CSA or CMS once the order is one year old. In most divorce cases where an agreement is reached through mediation, collaborative law or negotiation, child maintenance is included in a consent order that the court approves as part of an overall settlement. A court order is not compulsory.
Generally child maintenance, whether paid following an agreement, a court order or a CSA or CSM assessment, does not reduce the recipient’s welfare benefits in the UK any more. However, you need declare the maintenance you get when you apply for benefits.
Under the CSA rules the parent who gets the child benefit from the government (the “parent with care”) can make an application to the CSA for maintenance against the other parent (the “non-resident parent”).
There are three different regimes in force at the moment: those of the original 1991 Child Support Act for very old cases (before March 2003), the 2003 rule from the 2000 Act for most cases and for (some) new cases the rules from the 2008 Act and the 2012 regulations are gradually introduced. The 2003 rules used 15%, 20% and 25% from the paying parent’s net income for 1, 2, or 3 or more children respectively as the starting point. The main change is that the new rules use the non-resident parent’s gross income instead of his net income as the basis for the calculation. This should make it easier to ascertain what the calculation is based on, although it means that there are now various percentages for different tiers of income. The government child maintenance calculator has these built in, so just use that.
Using gross income as the basis means that it is difficult to use the same formulae for court cases where the paying parent lives abroad because the rates of tax and social security contributions vary from country to country.
Child Support Solutions specialise in advising parents on CSA/CMS maintenance calculations.
30 August 2013 by Andrea Woelke
3 Southwark Street, London SE1 1RQ, T: +44 20 7407 4007
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