Child Maintenance: What You Need to Know

Child Maintenance: What You Need to Know

Child maintenance is the financial support paid by the non-resident parent to the parent or inidivdual with care of the child to help cover a child’s living costs after separation or divorce. It ensures that children continue to receive the care and resources they need, regardless of their parents’ relationship status, and has to be paid until a child reaches 16 years or 20 years if they are in full time education.

How Is Child Maintenance Arranged?

There are three main ways to arrange child maintenance in the UK:

1. Family-Based Agreements

Parents can agree privately on how much should be paid and how often. These agreements are flexible but not legally enforceable unless turned into a consent order.

2. Child Maintenance Service (CMS)

The CMS is a government-run body that calculates and collects maintenance based on the paying parent’s gross income. It uses a standard formula and applies to most separated families.

3. Court Orders

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. 

How Does the CMS Calculate Child Maintenance?

The CMS uses a formula based on:

• The paying parent’s gross annual income
• The number of children
• The number of nights the child stays with the paying parent
• Whether the paying parent supports other children

The CMS has a maximum income cap of £3,000 per week (£156,000 per year). If the paying parent earns more than this, the receiving parent can apply to the court for a top-up order.

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).

When Can the Court Make a Child Maintenance Order?

The court can intervene in specific circumstances:

1. High-income cases (top-up orders)

When the paying parent’s income exceeds £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). 

2. When the child or paying parent are not habitually resident in the UK

The court can intervene and make a child maintenance order in cases where the child or the paying parent are not habitually resident in the UK. This is because, for the CMS to have jurisdiction, the paying parent must be habitually resident in the UK (with exceptions being those employed by certain British organisations such as the civil service or military). 

3. When there are school fees to consider

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. 

• Married parents: Apply under the Matrimonial Causes Act 1973
• Unmarried parents: Apply 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.  

4. When there are special needs to consider

The court may also make a child maintenance order to cover additional costs related to a child’s disability.

• Married/civil partners: Apply under Section 23 of the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004
• Unmarried parents: Apply under Schedule 1 of the Children Act 1989

While maintenance typically ends at age 16 (or 20 if in full-time education), paragraph 3(2)(b) of Schedule 1 allows for extended support in “special circumstances” - including disability. As per C v F (Disabled Child: Maintenance Orders) [1998] 2 FLR, a child’s disabilities will amount to “special circumstances”.  

More recently, in AB v CD [2023] EWFC 103 (B), the court affirmed that when considering whether to make an order for child maintenance beyond the child’s 16th or 19th birthday, it 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.

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Frequently Asked Questions

Q: Who pays child maintenance?

A: The parent the child does not live with most of the time (the “non-resident parent”) usually pays.

Q: Can we make our own agreement?

A: Yes, but it’s not legally binding unless approved by the court.

Q: What if my ex earns more than £156,000 a year?

A: You can apply to the court for a top-up order.

Q: Can the court override the CMS?

A: Only in specific cases, such as high-income or international families.