Guide to enforcement of child financial provision
The methods of enforcing child maintenance vary depending upon your particular circumstances. If, as part of your divorce or civil partnership dissolution, financial provision for the benefit of the children was included in the final order, then you can enforce this against your former partner through the court. If the order is over 12 months old, however, then either party can apply to the Child Support Agency (‘CSA’) or the Child Maintenance Service (‘CMS’) for an assessment, the effect of which is that the child maintenance under the order is replaced by the CSA assessed figure. In those circumstances you will have to ask the CSA or the CMS to enforce the assessment on your behalf.
Enforcement of a court order
Whilst the appropriate method of enforcement will depend upon the facts of your case and the assets available the most common methods include:
a) Obtaining a charging order over property owned by the paying party whether this is owned in their sole name or otherwise;
b) Obtaining a third party debt order to effectively seize any money that the paying party has paid or owes to a third party;
c) Obtaining an attachment of earnings order so that the monies due under the order can be deducted from the payer’s salary;
d) Obtaining a warrant of possession/or execution to seize goods or to secure possession of premises; and
e) Petitioning for the debtor’s bankruptcy.
Please note that steps to enforce maintenance orders once in arrears should be taken within twelve months of the arrears falling due in order to maximise the chance of recovery, failing which leave of the court to enforce will be required.
These processes will obviously differ if the paying party or their assets are located outside of the jurisdiction. In such an event, specialist expertise and international network should be called upon to secure the best possible result.
Enforcement through the CSA or CMS
The CSA is in the process of being replaced by the Child Maintenance Service (‘CMS’). The CSA base their standard calculations on the non-resident parent’s net income whereas the CMS bas their calculations on the non-resident parent’s gross income. The CSA currently take 15%, 20%, or 25% from the paying parent’s net income depending on whether they have 1, 2 or 3 or more children. The CMS will take 12%, 14 % or 16% of the paying parent’s gross income for the first £800 of their weekly income depending on whether they have 1, 2 or 3 or more children. Any income over £800 per week is charged at the reduced rates of 9%, 12% and 15%. In both instances parents will be given a 1/7th reduction for every 52 nights a year they have overnight contact with their children. Both schemes will seek to recover the money on your behalf if necessary. With the CMS there will be a charge for this service.
If you are interested in discussing enforcement of child financial provision please see How Vardags can help with the enforcement of child financial provision.=