My ex is refusing or unable to pay child maintenance

If your ex is refusing to pay child maintenance, or claims to be unable to do so, it is important to act quickly. Contact Vardags today for a free initial consultation with one of our expert family and divorce solicitors. 

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Where a party has failed to pay child maintenance, the CMS will first provide them with an arrears notice. The paying parent may agree a repayment plan with them to clear any arrears. However, if they fail to respond to the notice or they are unable to agree to a repayment plan, the CMS can take enforcement action against them.  

If the party is employed, the CMS may make a ‘deductions from earnings order’ which allows them to deduct a sum directly from their wages to pay back the arrears. For those who are not employed, for example, if they are self-employed, retired, or unemployed, the CMS may deduct money from their bank or building society account. They may take regular deductions through a ‘regular deductions order’, or a one-off payment under a ‘lump sum deduction order’. If the CMS is unable to recover the arrears through any of these methods, they can request a ‘liability order’ from the court. If this is granted, then bailiffs may attend the party’s property, seize their goods and sell them. The CMS can also apply for a ‘charging order’ to secure the debt against the party’s home. If the party still fails to pay the arrears owed, the CMS can request an ‘order for sale’, requiring the party to sell their home so that the arrears can be recovered from the sale proceeds.  

If the paying parent directly pays the other parent the child maintenance, in what is called ‘direct pay’, the CMS should be immediately notified if payment obligations are not met. In order to collect any arrears, the CMS may move the other parent to ‘collect and pay’ so that they can claim the money on their behalf.  

Where the paying parent pays the CMS, who then passes the payments on to the other parent, this is called ‘collect and pay’. Under this system, the CMS will automatically know if a scheduled payment has not been made and take action.  

In cases where the child maintenance owed was ordered by the court, there are several methods of enforcement which the court may take. 

Deduction orders

Deduction from earnings Order

A ‘deduction from earnings order’ (DEO) will directly take payment from the paying parent’s salary or pension. The paying parent’s employer will deduct the specified amount from the employee’s net earnings and pay it directly to the CMS. Any accumulated arrears will be included in the amount payable. However, the CMS cannot deduct more than 40% of the paying parent’s net income. 

If the employer fails to deduct the required sum from the employee’s earnings, they may be prosecuted. 

Regular Deduction order

Similarly to a DEO, a ‘regular deduction order’ allows the CMS to directly recover the sum owed from the paying parent’s income. However, a ‘regular deduction order’ requires the money to be deducted by the parent’s bank or building society. This may be sought instead of a DEO where the parent is retired, self-employed, or otherwise does not have an employer. Money may be deducted on a weekly or monthly basis, but the paying parent must be left with at least 60% of their weekly net income. No deduction will be made if it would cause the paying parent to have less than £40 for a monthly order, or £10 for a weekly order. 

Lump sum deduction order

The most preferable way for the CMS to clear any arrears will be a lump sum deduction order. Rather than deducting a monthly or weekly sum, the CMS will collect a one-off payment from the paying parent’s bank account. To do so, the CMS will send the paying parent a copy of an interim order, which will set out how much money will be taken. The paying parent will then have 14 days to provide any additional information to the CMS, such as changes to their financial circumstances which may affect the amount of child maintenance they should pay. The bank or building society will also be notified, and they will freeze the bank account up to the specified sum – preventing the paying parent from simply withdrawing the funds.  

A lump sum deduction order can only be made where the paying parent has sufficient funds – it can’t be made if they have less than £100 in their account. However, a lump sum deduction can still be made even if the paying parent does not have the full amount in their account. In this case, the CMS may take any amount up to £110, and then the remaining amount once additional money is paid into the account.

Liability Orders

If the CMS are unable to recover the child maintenance owed through a deduction order, they can apply to the court for a ‘liability order’. If this is provided, bailiffs will then be able to attend the paying parent’s property and seize goods belonging to them. Alternatively, a charging order may be sought to force the sale of the paying parent’s home. Where these measures are still insufficient to clear the arrears, punitive action may be taken.  

Punitive measures

Where the CMS have been unable to recover the child maintenance owed, they can ask the court to take away the paying parent’s passport or driving licence or even sentence them to time in prison. 

attachment of earnings order

 If the paying parent fails to meet their court-ordered maintenance obligations, the court can make an attachment of earnings order (AEO). Similarly to a DEO, this orders the paying parent’s employer to directly deduct a sum from their earnings. However, an AEO can only be made where the paying parent is in employment. Income from self-employment, welfare benefits, and state pension payments cannot be subject to an AEO.  

To request an AEO, an application must be made by submitting a Form FE15, as well as a copy of the original maintenance order. The court will then serve the application and a Form FE17 on the paying parent, who will then have eight days to reply via the Form FE17. This provides the paying parent with the opportunity to make an offer of voluntary repayment.