Failure to pay child maintenance

Who pays child maintenance? 

Although no two families are the same, and every domestic situation is different, when parents separate, there is often one parent who takes over day-to-to day care of the children. This will also be the parent that the children primarily live with and known as the “resident parent”, with the other parent referred to as the “non-resident parent”.  

The resident parent’s outgoings will need to cover their own requirements as well as those of the children including: 

• Food, 

• Clothing  

• Transport 

• Other day-to-day essentials 

• One-off expenses 

• Housing costs.  

Whether or not a child lives with a parent, they both still have equal parental responsibility and the same financial obligations towards their children. Therefore, it generally falls on the non-resident parent to pay maintenance to the resident parent. 

Private agreement, court order or CMS? 

It should be noted that private agreements alone are not legally enforceable and rely on the good faith of the non-resident parent to be successful. This leaves the resident parent in a potentially vulnerable financial position and without the protection of the court or the CMS the non-resident parent suddenly decide to cease payments. A private arrangement that has been made legally binding via a consent order also offers additional protection.  

The Child Maintenance Service (CMS) is the most common route for dealing with child maintenance and reduces the scope for unnecessary, and costly, disputes. The CMS will calculate the level of maintenance owed (as referenced above), facilitate regular payment and pursue payment if needed. 

However, in certain scenarios, child maintenance can be ordered by the courts where the CMS does not have jurisdiction.  

How is child maintenance calculated?  

How much child maintenance a non-resident parent owes is calculated based on: 

• Their income 

• How many dependent children the parties share 

• How care of these children is divided between the parties.  

The more time that the children spend in the care of the non-resident parent, the less this parent will owe in maintenance to the resident parent. Should care of the children be shared equally, making both parents effectively ‘resident’, then neither one will be liable for child maintenance. This is because child maintenance is specifically for the care and upkeep of children, and not of the other party.  

A Child Maintenance Calculator is available the government website. However, should the non-resident parent earn more that £3,000 gross per week, then the resident parent can apply to the court for extra child maintenance. 

What happens if child maintenance is not paid? 

Arrangements via CMS 

If the non- resident parent normally pays maintenance via the CMS and they fail to make their regular payments then the CMS will automatically seek payment from them without any action from the resident parent.  

If the non-resident parent usually pays the money to the resident parent directly, but the parties have still used the CMS to reach their agreement, the resident parent can contact the CMS to request action from them if the non-resident parent fails to pay. The CMS will then contact the non-resident parent to pursue payment of the missing funds.   

Where payments are missed or not paid in full then the CMS will contact the non-resident parent to inform them that they will take action if the amount is not paid in full and the original child maintenance decision adhered to in the future.  

If this does not happen then the CMS has the power to deduct payments directly from the non-resident parent’s wages, known as a “deduction from earnings order”. An employer must comply with such an order and there is no need for a court order. However, the CMS will tell the employer to leave the non-resident parent with enough funds to cover their own living costs. If circumstances have changed then the CMS can adjust payments (for example, this applied to those seriously affected by the Covid-19 pandemic in relation to their earnings). 

The CMS can then take child maintenance from a bank or building society where there is not enough funds in their wages.  

Finally, the CMS can apply to the court to gain a liability order to recover any unpaid amounts- this can also affect the non-resident parent’s credit score. 

Private arrangements 

However, where parents have reached an agreement independently of the CMS, while it is open to them to make a new application to the CMS for child maintenance, the CMS cannot claim arrears from the non-resident parent. This means that they will only pursue maintenance from the date of the application, potentially leaving the resident parent out of pocket. The CMS can take being collecting ongoing payments once a claim has been made if the arrangement is legally binding under a consent order that was made at least 12 months ago.  

The resident parent may also apply directly to the court that made the order and request enforcement. Should the court find that the non-resident parent is in breach of the order, they will then take steps to enforce and secure payment from the non-resident parent.