Varying child maintenance

Can I change my child maintenance payments?

In some cases, parties may be able to agree any child maintenance between them, and therefore if one party wishes to vary the amount paid, the first step will be to raise this with the other party and try to come to a further agreement.

Most commonly, child maintenance is determined by the Child Maintenance Service (CMS). Where the paying party earns an amount not exceeding £156,000 per year, they will be subject to a child maintenance assessment and the child maintenance payable will be calculated through a standard formula by the CMS.

Where the paying party’s income is over £156,000, and the CMS has awarded a “maximum assessment”, the court has jurisdiction to determine additional “top up” child maintenance.

The Child Maintenance Service 

To vary the amount of child maintenance you pay, you can contact the CMS and apply for variation.

The CMS conduct an annual review of each case, but if there have been changes to the paying parent’s circumstances, affecting their income or expenses, or to the child’s living arrangements, the CMS should be notified as soon as possible.

If you believe that the CMS have made a mistake in calculating the child maintenance payable, you can dispute this and ask them to look at their decision again. Whether they determine that their original award was correct or incorrect, you can appeal that reconsideration decision within one month of receiving their decision. If you appeal later than this,you will need to explain the delay.

An appeal form will be provided by the CMS, and the appeal will then be heard by the First-Tier Tribunal(Social Security and Child Support). There are specific issues that cannot be heard by the tribunal due to a lack of jurisdiction, such as:

• Disputed parentage
• Appeal against a deduction from earnings order (DEO)
• Appeal against a deduction order

Court-ordered child maintenance  

The court does not have the power to make or vary child maintenance orders where the CMS has jurisdiction. Where the court has jurisdiction and has made an order for child maintenance, such as school fee orders, top-up orders, consent orders, and orders for maintenance for children with special needs, you can apply to appeal or vary the court order in much the same way as for spousal maintenance.

Commutation payment 

Following the case of AZ v FM [2021] EWFC 2, child maintenance can also be ‘capitalised’, similarly to spousal maintenance. In this case, Mostyn J confirmed that the court has jurisdiction to order child maintenance payments to be ‘capitalised’, meaning that future periodical payments for the benefit of a child can be replaced by one lump sum. He called this a “commutation lump sum” and emphasised that this would only happen in extremely rare circumstances. In this case, the following facts justified a commutation lump sum:

• There had been “incessant litigation” between the parties and the husband had repeatedly defaulted on the maintenance payments
• The parties’ daughter was 19 and the child maintenance payments were to end once she left university
• The husband was habitually resident in the US and so the Child Maintenance Service did not have jurisdiction under the Child Support Act 1991.

The full scope and application of the court’s power to capitalise child maintenance has not yet been fully defined, but it seems it may be an effective enforcement mechanism in cases where the paying parent has defaulted on payments and lives outside the UK, rendering other tools of enforcement ineffective. In cases like this, it is also more desirable for the court to end the financial ties between the parties, given the costs incurred by "incessant litigation”.

If you believe the amount of child maintenance you are paying, or is being paid to you, is incorrect, contact Vardags today for a free initial consultation with one of our expert divorce solicitors. 

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