Child Maintenance

Child Maintenance

Introduction

All parents have to pay financially support their children.  This is true even if they don’t have parental responsibility for their children and even if they don’t have any contact with them.  

In this guide we’re using the following terms 

• ‘resident parent’ to refer to the parent who looks after the children for more time than the other parent 

• ‘non-resident parent’ to refer to the parent who looks after the children for less time than the other parent 

We know that many parents share care, and we do not mean to be insulting when we refer to a non-resident parent. We’re using these terms because the Child Maintenance Service uses these terms to describe who has the child for more overnight stays. That person is the resident parent and receives the maintenance, even if the other parent has the child almost as much of the time. 

If the child lives with someone who is not a parent, such as a grandparent, maintenance should be paid by both parents to them.  

If it is not clear who is a parent, the CMS will arrange a DNA test.

Why should I pay child maintenance? 

Where a child lives with their parent that parent will need to meet all kinds of expenses. This is not only direct things for the child, such as clothes, but also indirect things such as paying the electricity bill or putting food in the fridge. Maintenance is for all these purposes. The receiving parent does not need to account for how they spend this money. 

In reality, as maintenance is a fixed percentage of the non-resident parent’s income, it doesn’t bear any relation to what it actually costs to raise a child. The Child Poverty Action Group says that it costs £250,000 for a couple and £290,000 for a lone parent to raise a child to the age of 18.  It also doesn’t reflect the living costs/disposable income that each parent has. As such, many people (both those paying and receiving) believe that the current way of working out maintenance is unfair. It may be – but that doesn’t change the fact that children cost money and so some financial support is necessary. 

How to sort out child maintenance 

There are several ways to sort out child maintenance: 

1. You can use the Child Maintenance Service (CMS) calculator to work out how much child maintenance you should pay or receive. You can then agree this amount with your ex and pay/receive the money directly, or you can go through the CMS. The CMS calls this a ‘private arrangement’. 

2. You can ask the CMS to work out the amount of child maintenance but then you sort out the payments between you and your ex without the CMS getting involved. The CMS calls this ‘direct pay’. 

3. You can use the CMS ‘collect and pay’ service. The CMS will work out how much maintenance should be paid and arrange to collect that money and pass it to the other parent. They charge the paying parent and additional 20% on top of the maintenance and then deduct 4% from the amount they pass on to the receiving parent. 

4. You can go through the courts under the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004 if you are married or in a civil partnership. There are some limits on when the court can get involved (see below) but your court order dealing with the division of the assets between you and your ex (known as a financial remedy order) can include an order for child maintenance in whatever sum you want. Even if the adults have a clean break financial order on divorce, this doesn’t apply to the children. You cannot have a clean break of obligations to maintain your children. 

5. You can go through the courts under Schedule 1 Children Act 1989 if you are unmarried (if married or in a civil partnership, the laws about money and your divorce, the Matrimonial Causes Act or the Civil Partnership Act, should be used instead).  

Using the Child Maintenance Service 

Let’s look first at using the Child Maintenance Service. Most people use the CMS to either calculate the amount only, or to pay/receive through them. 

Who can use the CMS? 

Either parent can apply. Where the children are living with someone else, such as a grandparent, the grandparent can apply for maintenance from both parents. 

Child Maintenance Service: Contact the Child Maintenance Service - GOV.UK 

If you are unsure about whether to apply, seek legal advice. 

The CMS will only deal with situations where the child is 

• aged under 16 or 

• aged under 20 and in full-time non-advanced education. This means education that is not higher than A Levels or their equivalent. 

How the CMS works out child maintenance 

Child maintenance is a percentage of the non-resident parent’s income. This income is worked out based on their tax returns. It is a percentage of their income before they pay tax and national insurance, but after they make any payments into a pension. 

The percentage varies depending on the income bracket of the non-resident parent and the number of children (1, 2, or 3+).  

There are deductions   

• If there are other children in the non-resident parent’s household 

• For overnight stays with the non-resident parent 

• For other children the non-resident parent has to pay maintenance for 

There can also be deductions if the non-resident parent incurs costs in attending contact. 

You should use the CMS calculator to work out the right amount. 

You can find all the rules in a CMS guide called How We Work Out Child Maintenance. 

Shared care 

Where the children live with both parents in turn (shared care), maintenance will still be payable if one of the parents has the children for fewer overnight stays than the other. However, no maintenance is payable if they share care exactly – because neither parent can be said to have care less than the other, so there is no non-resident parent.  In most cases, this kind of exact split doesn’t happen, even if the parties intended to share 50/50. This is because over the course of the year someone tends to have the children slightly more, even if that was not planned. 

Going to court about child maintenance 

Courts can only get involved in child maintenance in certain situations. This means that in most cases, it will only be possible to use the CMS. 

The rule is that you cannot use the courts if the CMS has the power to make an assessment in your case. 

When you can use the courts 

You can use the courts: 

• When you and your ex agree that the court should deal with maintenance in your financial order on divorce or civil partnership dissolution.  

  You can write the amount of maintenance into an order. You can run the maintenance for however long you want – it’s common to run it until the children finish university, including taking a gap year (but is not paid during the gap year). However, one year after the order is made, you or your ex can apply to the CMS and the CMS will take over. The CMS assessment may be higher or lower than the court order says. The amount and duration of the bit of the order dealing with child maintenance will no longer apply. 

  You can also agree a combined figure for child and spousal maintenance which would mean that if the child maintenance fell following a CMS assessment, the spousal maintenance portion would increase so the overall amount would stay the same. This can help ensure continuity but there are always risks so seek legal advice to understand this ‘global maintenance’ properly. 

• To apply for a court order that your ex gives you a lump sum to buy something such as a car to transport the children.  

  You can do this because the CMS does not deal with lump sums. However, you cannot use a lump sum for things that need to be paid regularly such as extra-curricular activities fees, as regular payments are what the CMS deals with.  If you are married or in a civil partnership, this would be dealt with as part of your divorce. If you and your ex did not marry, this would be an application under Schedule 1 Children Act 1989. While it is possible to use Schedule 1 even if you’re divorced, it would need to be an exceptional situation. 

• For use of a house for the children and the resident parent to live in, or for the money to buy or rent a house. This is usually only while the children grow up, and then after that the house will have to be given back to the non-resident parent. While many cases about this involve very rich people who can afford multiple houses, courts have made this kind of order when there is only one house and that is needed for the children. If you are  married or in a civil partnership, this would be dealt with as part of your divorce. If you and your ex did not marry, this would be an application under Schedule 1 Children Act 1989. 

• When you, your child, or your ex lives outside Great Britain or Northern Ireland because the CMS cannot get involved unless your ex works abroad for specific organisations (the Crown, diplomats, military, certain companies).  

• When your child is too old for the CMS. The CMS can only deal with children aged under 16, or aged under 20 but in education or training that is not higher than A levels or their equivalent. You can therefore use the courts if 

  • Your child is 17 and not in education or training 

  • Your child is 18+ and in education or training for a trade, profession or vocation (or would be if maintenance was paid), even if they also have a job. The court order would only cover the costs relating to the education or training. 

• When your child is disabled and the money is to meet costs relating to their disability such as adapted equipment. You can use this even if the child is over 18 as long as they are still dependent on you. 

• Where your ex’s income is over £156,000 per year. You will need to apply to the CMS and have them assess the non-resident parent as needing to pay the CMS maximum, and then you can apply to court for a ‘top-up’. Courts often use the same percentages as the CMS would (but on a larger amount), although they don’t have to do this.  

• You are asking for maintenance from a step-parent (someone who was married to you) who is not the children’s legal parent. This is because the CMS can only make parents pay. 

Further help 

All this can be confusing. Remember that this website just provides information and it cannot cover everything you might need to know, and it is not a replacement for legal advice.  

For advice about your own situation, find a lawyer by looking at our page on Finding Legal Advice. 

The single parents’ charity Gingerbread also has helpful information about child maintenance.

Developing this page 

This site is a work in progress. If you have a request for something for us to write about to add to this page, email us at law.clinic@uea.ac.uk. However, remember that we cannot give legal advice about your situation so we will only deal with general requests to write more information on specific points. 

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