Child maintenance (support)

Child maintenance relates to regular payments made by a non-resident parent to the individual or parent with care of the child to meet their day-to-day living expenses following relationship breakdown. Child maintenance has to be paid until a child reaches 16 years or 20 years if they are in full time education.

How IS CHILD MAINTENANCE calculated?

Clients will often wonder “how much child maintenance should I pay”? Child maintenance payments can be agreed between parents on a voluntary basis, but if they cannot agree on the appropriate figure, the Child Maintenance Service (“CMS”) has primary jurisdiction for assessing child maintenance, rather than the courts.

If you require advice regarding how much child maintenance you or your former partner should pay, contact Vardags today for a free initial consultation with one of our expert divorce solicitors. 

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CHILD MAINTENANCE SERVICES (CMS)

Most often, child maintenance will be calculated by the Child Maintenance Service (CMS). The CMS can obtain details of the paying parent’s yearly gross income from HM Revenue and Customs (HMRC). This includes benefits and pension payments, however, income from a rental property, business dividends, interest on savings, overseas income, and other assets are not considered. This omission has faced significant criticism for creating a ‘loophole’ for parents to limit or avoid paying child maintenance. For example, in Green v Adams [2017] EWFC 24 the father had assets worth over £5.2 million, yet the CMS had calculated that he should only pay £7 a week. 

Once the relevant income has been determined, the CMS will also consider the number of children to be paid for, any other children they financially support, and whether the parents ‘share care’. This refers to the child staying overnight with the paying parent, and if this happens at least 52 nights a year (an average of 1 night a week), this will impact on the child maintenance payable.  

The government website provides a helpful calculator tool which estimates the amount of child maintenance the CMS will determine should be payable: Calculate your child maintenance - GOV.UK (www.gov.uk).

court determined child maintenance

The CMS only have jurisdiction to determine child maintenance if the paying parent lives within the UK and earns up to £156,000 gross per year. Beyond these circumstances, the court will have jurisdiction to make an order in relation to child maintenance. 

‘TOP-UP’ ORDERS

Where the CMS have determined that the paying parent’s income exceeds the maximum level assessable under their formula (£156,000 gross per year), the court can make a ‘top-up’ order. The court has wide discretion to determine the amount of child maintenance payable in these circumstances. In recent years, Mostyn J in particular has driven change in this area, setting out the Household Expenditure Child Support Award (HECSA) and the Adjusted Formula Methodology (AFM). 

CHILD OR PARENT IS NOT HABITUALLY RESIDENT IN THE UK

The paying parent must be habitually resident in the UK for the CMS to have jurisdiction. The only exceptions to this are those who are not habitually resident within the UK, but they are employed by certain British organisations, such as the civil service, the military, or a company based and registered in the UK.  

Where the CMS has no jurisdiction to determine child maintenance because the payer parent is not habitually resident in the UK, the court can make a child maintenance order.

SCHOOL FEES ORDER

The court can make an order in relation to private school fees, detailing who is to pay them, how they should be paid, and for how long. The CMS do not have this power. 

Where the parties are married, a school fees order can be applied for under the Matrimonial Causes Act 1973. If the parties are unmarried, it can be applied for under Schedule 1 of the Children Act 1989. 

In deciding whether a school fees order should be made, the court will consider various factors, namely: 

• Is the child already in private education? 

• Did the parties intend for the child to be privately educated? 

• Are there sufficient funds to pay the tuition fees? 

If the child already attends a private school, the court will generally believe it to be in their best interests to remain in that school if possible. This is particularly the case where the child is preparing for key exams such as GCSEs and A-Levels, where minimising any disruption to their education is even more crucial. Overall, providing stability for the child will be an important consideration for the court.  

Where the parties intended their children to be privately educated, then this may also influence the court in favour of providing a school fees order. For example, if the parties’ older child was sent to a private school, this may suggest that they intended for the younger child to also be educated there.  

Of course, the financial resources available to the parties will be the trump card. If the school fees are unaffordable, then the court will not make a school fees order, even if the child is currently in a private school and it was the parents’ intention for them to be privately educated.  

CHILD MAINTENANCE FOR CHILDREN WITH DISABILITIES

The court may also make a child maintenance order to cover any expenses attributable to a child’s disability.  

If the parents were married or in a civil partnership, an application can be made under section 23 of the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004. Alternatively, if the parents were unmarried an application can be brought under Schedule 1 of the Children Act 1989. 

Typically, an order for child maintenance can only be made for those under 16, or 20 for those in full-time education. However, paragraph 3(2)(b) of Schedule 1 of the Children Act 1989 provides that an order for child maintenance may be extended beyond the child’s 16th birthday (or 19th birthday for those in full-time education) if “there are special circumstances which justify the making of an order”. As per C v F (Disabled Child: Maintenance Orders) [1998] 2 FLR, a child’s disabilities will amount to “special circumstances”.  

As per AB v CD [2023] EWFC 103 (B), when considering whether to make an order for child maintenance beyond the child’s 16th or 19th birthday, the court will have regard for the parties’ income, expenses, and needs, as well as the factors listed under (a)-(e) of s.25 of the Matrimonial Causes Act 1973.  

Vardags regularly act for parties whose income exceeds the CMS threshold. We are therefore fully versed with the court’s “top-up” jurisdiction, and with brokering an agreement between parents as to the appropriate level of child maintenance as part of the overall financial settlement. Vardags will forensically examine a party’s income position, and the nature of the arrangements for the children, to ensure we achieve a favourable outcome.