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Financial Provision

The best for your children We encourage parents to place their children's needs at the heart of the process

 

With a team of leading experts in child support, we are in the best position to advise you on securing financial provision for your children. We are widely recognised for our experience in dealing with cases where financial support is a stand-alone issue or where it comprises part of an overall settlement on family breakdown.

In the UK, broadly there is a two-tier system for child maintenance payments. Beyond this, parents are of course free (and encouraged) to agree whatever child maintenance they feel is appropriate and arrange payment between themselves. Parents may also find that mediation can assist them to facilitate their discussions surrounding financial provision. What can’t easily be agreed is the permanent exclusion of the involvement of the Child Maintenance Service – that is usually looming in the background.

The Child Maintenance Service (“CMS”)

Where parents are unable to agree the level of maintenance to be paid, either parent may apply to the CMS which then undertakes a calculation and provides a schedule for payments. Payment (from the Non-Resident Parent (“NRP”)) can either be made through the CMS (“the collection service”) or direct (“payment direct”) to the receiving parent (the Parent With Care (“PWC”)). Where the collection service is used ‘handling fees’ of 20% to the NRP and 4% to the PWC are levied.

The CMS will apply a specific formula when calculating the level of maintenance to be paid. The calculation is based on the NRP’s income. The PWC’s income is not taken into account.

Where the NRP’s net income exceeds £200 per week, maintenance will, in effect, be:

  • 15% of net weekly income for one qualifying child;
  • 20% of net weekly income for two qualifying children;
  • 25% of net weekly income for three or more qualifying children.

Allowances and adjustments to the calculation are made:

  • depending on whether there are other children living with the NRP and
  • how many nights the qualifying child stays with the NRP.

Where the gross income exceeds £3,000 per week, then the PWC can make an application to the Court for maintenance as the CMS calculation will only take into account an income up to this level.

Making an application to the Court

Court orders for maintenance can only be made:

  • Where the CMS has no power to undertake an assessment;
  • Where the parties agree; or
  • Where the orders are for educational costs, disability costs or to top up a maximum award.

This will also mean that where children are approaching university, the Court recovers jurisdiction to determine support that may be paid:

  • To the child directly (for university fees or by way of support to meet accommodation or living expenses); and
  • As a contribution to the additional costs faced by the parent providing the child with their home base.

Where a Court Order is made for financial provision for a child, the Court will take into account a number of considerations including the financial resources of each parent, the financial responsibilities and needs of each parent and the needs of the child.

At Family Law in Partnership, we pride ourselves on handling complex cases for financial provision with the expertise and insight that is required. We are able to guide clients through the Court process and help them make well-informed and well-advised decisions throughout.

You may find the following links useful:

Child maintenance calculator (https://www.gov.uk/calculate-your-child-maintenance)

Child Maintenance Service (https://childmaintenanceservice.direct.gov.uk/public/)

Child Maintenance Options (http://www.cmoptions.org/index.asp)

Questions that clients commonly ask us about financial provision for their children:

My ex-husband and I are on fairly good speaking terms when it comes to our children. Do we have to involve the Court to determine how much my ex-husband should pay for child maintenance? In short, no you do not have to involve the courts or the CMS. In an ideal world, you and your ex-husband will be able to agree the level of maintenance to be paid yourselves. You may wish to use the CMS calculator as a guide as to the amount and, as the receiving party, you may wish to prepare a budget of monthly expenditure for the children and share this with the paying parent. Entering into, what is known as a Family Based Arrangement such as this ensures both parents remain in control and allows flexibility within the overall agreement.

When does the CMS have jurisdiction? In order for the CMS to make an assessment:

  •  The child, PWC and NRP must be living in the UK (there are some provisions to ‘catch’ some NRPs living abroad);
  •  Only children for whom child benefit could be claimed (broadly under 20 and in full time secondary education);
  •  The NRP and PWC must be the natural or adopted parents (rather than step-parents, for example); and
  •  The NRP and PWC must have separated.

If there is a Court Order for child maintenance then jurisdiction is likely to be excluded for 12 months from the date of the order (but no longer). Remember that the CMS calculation will only take into account a gross income of the NRP up to £3,000 per week. If their gross income exceeds this, the PWC should make an application to the Court.

Why might I make an application to the Court instead of going to the CMS? If for whatever reason, the CMS no longer has the power to undertake an assessment as the criteria above are not met or you wish to make an application for a capital sum, then you can make an application to the Court. For example, you may need to replace a car which you use to take your children to school and you don’t have sufficient resources to pay for this yourself.

What happens if my ex-husband keeps missing payments or has stopped paying altogether? Whether payment is being made pursuant to a CMS calculation or under a Court order, you will have an option as to how to recover the sums owed to you. If the CMS has arranged the payments then you should contact the CMS and provide the service with details about any missed payments. If payment is made through the collection service, then this should be actioned promptly and you should raise a complaint if the CMS is not taking prompt action. If there is a Court order in place, you can apply to the Court for enforcement of the Court order. Again, you will need to provide details of all the payments which are owed to you together with a calculation of any interest to be paid.

Take a look at our blogs on the child maintenance service:

Pending change in child support calculations – Assets return to generate a notional income

The Child Maintenance Service – A third generation scheme?