The Ultimate Guide to Child Maintenance – Everything You Need To Know

Child maintenance, often referred to as ‘child support’, is a legal mechanism designed to ensure children receive financial support from their parents, irrespective of the living arrangements post-divorce or separation.

Navigating child maintenance following a divorce or separation can be tricky for many parents. It’s a terrain marked by legal complexities, financial uncertainties, and emotional challenges.

The purpose of this Ultimate Guide is to provide an accessible overview of child maintenance to parents wanting to understand their financial obligations and navigate the system effectively.

We’ll cover everything from how child maintenance is calculated, enforced, and managed, to the questions that often perplex parents: Who is obliged to pay? What does child maintenance cover? What is the duration of these payments?

With this comprehensive guide, we will help you find a path through post-separation parental responsibility so that you can approach your situation with clarity and confidence

What is the Child Maintenance Service?

The Child Maintenance Service (CMS) was established in 2012 as a modernised and simplified replacement of the Child Support Agency (CSA) (est. 1993).

Both were created to enforce the Child Support Act 1991, a law that:

• Holds separated absent parents accountable to their obligation to provide for their child 
• Aims to increase levels of cooperation between separated parents
• Secures better outcomes for children whose parents have separated

The CMS can calculate the amount payable, arrange payments, take action if a parent does not pay, can step in to mediate disagreements about parentage, and are able to support with finding a parent that owes child maintenance if their location is unknown

Typically, the non-resident parent makes payments to the resident parent, and the amount of child maintenance is calculated based on several factors, including the income of the paying parent, the number of children they need to support, and how often the children stay with them.

Six Common Misconceptions About Child Maintenance

It’s understandable that many parents have questions about their financial obligations with regards to child maintenance. The process can be confusing and there are a lot of incorrect assumptions about how this essential component of family law works.

Let us do some myth busting…

Myth #1 Child maintenance is only applicable in divorce

A widespread misconception is that child maintenance is exclusively linked to divorce. In reality, child maintenance responsibilities apply to all parents, regardless of their marital status. This includes couples who were never married but are separating, as well as parents who have never lived together.

Did you know?

Each year, around 50% of UK children are born to parties who aren’t married

The key factor here is parental responsibility, not marital status. The obligation to provide financial support for a child’s upbringing exists for both parents, ensuring the child’s needs are met irrespective of the parents’ relationship status.

This underscores the principle that child maintenance is fundamentally about the child’s welfare, not the relationship between the parents.

Myth #2 Child maintenance is organised through the court

Many people think that child maintenance goes through and is determined by the courts. But since the introduction of the Child Support Act 1991 and the establishment of the Child Maintenance Service (CMS), most child maintenance matters are handled outside the court system. In fact, child maintenance is the only area of English family law where the outcome is determined by a statutory agency, i.e. outside of court. Instead, it is upheld by the English & Welsh government and enforced by Child Maintenance Service.

Myth #3 Child maintenance is payable until the child turns 18

This isn’t always the case!

The obligation can end after this age. The key factors that determine how long child maintenance needs to be paid for is either the length of time they’re in formal education or training or if there is an agreement between both parents that payment should continue to cover tertiary education. The CMS does not have any power to order the payment of child maintenance after a child has left full-time secondary education or training.

Myth #4 Child maintenance covers all child-related expenses

While child maintenance is intended to contribute to the general costs of raising a child, such as food, clothing, and basic living expenses, it doesn’t necessarily cover all costs. Expenses like extracurricular activities, higher education, and specific medical costs might not be included and may require additional arrangements through the court or agreements between the parents.

Myth #5 A child maintenance agreement must go through CMS

It’s an understandable assumption that child maintenance agreements must be processed and managed through the Child Maintenance Service (CMS) in England & Wales. It’s a rigid legal framework that assesses and upholds child maintenance payments.

However, parents have the flexibility to arrange child maintenance directly with each other, which is known as a ‘family-based arrangement’.

This informal approach allows parents to agree on the amount and terms of maintenance payments without CMS intervention. While the CMS can provide a structured and enforceable framework, family-based arrangements offer greater flexibility and can foster an increased level of cooperative parenting.

It’s essential that parents are made aware of this option, as it can lead to more personalised and mutually agreeable solutions. On the negative side, this ability to ‘agree’ arrangements outside of the CMS, may enable domestic abuse perpetrators to impose a disadvantageous sum upon the victim parent, who often has the main care of their child.

Myth #6 Child maintenance laws are the same across the whole of the UK

Child maintenance laws and processes vary across the UK. Scotland in particular has its own set of laws, distinct from those in England and Wales.

There will always be assumptions and misconceptions about child maintenance. It’s therefore important that you make sure you understand the facts and know where you stand regarding your obligations.

If in doubt, you can always reach out to CMS directly or speak with an adviser at NACSA, a trusted provider of legal advice and guidance for parents and others involved with child maintenance decisions, on Home – NACSA

Child Maintenance in Divorce & Separation: What are the differences?

As we’ve discussed, child maintenance ensures that both parents contribute financially to their children’s upbringing, regardless of whether they live with them or see them regularly. This responsibility persists in both divorce and separation scenarios, encompassing a range of circumstances and legal considerations.

However, there are a few differences to be aware of if you’re going through either a divorce or a separation where a child maintenance agreement needs to be in place.

Child Maintenance and Divorce

In divorces where there are children involved, child maintenance can become part of the divorce proceedings in court.

However, unlike other divorce-related settlements, such as the division of property and assets, child maintenance outcomes are determined by a government-imposed formula, as per Section 25 of the Matrimonial Causes Act 1973. This formulaic approach makes child maintenance a smaller part of the court ruling and one of the few areas in family law not left to a judge’s discretion. In fact, a judge can only make an order on child maintenance up to secondary school by agreement between the parents, unless there are other factors such as special costs for education or a disability, for example.

Child Maintenance and Separation

In cases of cohabiting couples separating, child maintenance is more often than not the primary claim – or in some cases, the only claim.

This distinction highlights the unique treatment of child maintenance in various relationship contexts and its encompassing of circumstances and legal consideration. In all cases, however, there is a responsibility to provide financially for a child which persists in both divorce and separation scenarios.

Know Where You Stand: Child Maintenance Eligibility & Exemptions

An important step to ensuring a smooth resolution to separation and child maintenance is to determine whether or not you are eligible to receive it or are exempt from paying it.

Eligibility

• The child in question must be under 16 years old or under 20 years old if in full-time education or training, up to and including A level or equivalent.
• You must live in England & Wales as your main home and have the right to live here.
• Applicants can include parents that are the primary caregiver of the child (regardless of living arrangements), grandparents responsible for primary day-to-day care, and guardians.

Exemptions

• Individuals with no income or who are either a full-time student or in prison do not have to pay child maintenance.
• You cannot apply for child maintenance if the child and the parent with main day-to-day care live outside England & Wales.

Please be aware

You will not be able to use the Child Maintenance Service if you have an existing consent order approved by a court that is either:

• Less than a year old
• Made before 3 March 2003
• If one of the parents lives outside England & Wales

How Child Maintenance is Calculated – In 3 Steps

The question of how child maintenance is calculated is one of the most common topics we encounter here at Blanchards, particularly because the outcome of a child maintenance assessment can have notable consequences on the financial situation of both parents.

The influencing factors can be daunting and difficult to grasp, but the rigid nature of CMS and child maintenance calculators means that it’s a case of providing your details and the CMS formula will do the rest.

Here at Blanchards Law, we cannot influence the outcome of the formula, or challenge decisions. This is where we refer you to NACSA who have specialist knowledge of the intricacies of the system.

The Child Maintenance Service looks at the following areas when determining the weekly amount of child maintenance payable.

1 – Income

The CMS will find out the paying parent’s yearly gross income from information supplied by HM Revenue and Customs (HMRC) and if they are receiving any government benefits. Tax credits, student grants and loans do not count as income.

They will also check for anything that may alter the gross income amount. For example, this might be pension payments, other children they support, or financial assets.

Once they have a full picture of a paying parent’s income, they’ll convert the yearly gross income into a payable weekly figure.

Note

The income of the parent with care (PWC) is not taken into account.

2 – Child Maintenance Rates

Based on the gross weekly income of the paying parent calculated, one of 5 rates will be applied:

Note

If the paying parent’s gross weekly income is more than £3,000, the receiving parent can apply to the courts for extra child maintenance.

3 – Other Children & Shared Care

CMS will take into account the number of children the paying parent has to pay child maintenance for. This includes any other children living with them and any arrangements that have been made directly for other children.

The number of children the paying parent is responsible for will reduce the amount of weekly income by a percentage. For example, if the paying parent is paying for:

• One other child, their weekly income will be reduced by 11%
• Two other children, their weekly income will be reduced by 14%
• Three or more other children, their weekly income will be reduced by 16%

They will also take into account the number of weekly overnight stays, which is considered ‘shared care’. In these cases, the CMS will make a deduction to the weekly child maintenance amount based on the average number of ‘shared care’ nights a week.

Where there were once thousands upon thousands of regulations at play, the CMS processes have been simplified over the years. The benefit of today’s assessment process is that answers can be obtained quickly and in the majority of cases, it’s very straightforward.

However, while there are now fewer regulations to exploit, the indiscriminate nature of the influencing factors and calculations can also be challenging for some situations. We touch on these points in the next section.

Challenges & Enforcement of Child Maintenance 8 Things You Should Understand About Child Maintenance

1. While there are benefits to the CMS’s structured approach to child maintenance calculations, it doesn’t take into consideration the nuances of each situation, nor how costs associated with raising a child can fluctuate, such as the addition of VAT on clothes past a certain age or the fact that a 16-year old will generally consume more than a 2-year old.

2. As child maintenance is a nominal sum, the non-paying parent is not required to submit receipts or justify what the child maintenance has been spent on.

3. Even if the non-paying parent gets married, the biological parent of the child is still responsible for paying child maintenance.

4. The Child Maintenance Service can facilitate payments if there are concerns about direct contact with the paying parent or sharing banking information. There is an admin fee by way of a percentage of the amount paid.

5. Only the income of the paying parent is used for calculating the amount of child maintenance payable. The income of the parent with care (PWC) is not taken into account.

6. Non-compliance with child maintenance payments can lead to significant financial repercussions and legal actions. Enforcement measures for non-payment can include seizing passports, freezing bank accounts, and even imprisonment.

7. Child maintenance can also be claimed from assets, calculated at 6% of the asset’s value. This is often relevant in cases where a wealthy party attempts to reduce their obligations by making their exact income unclear.

8. The enforcement process isn’t without limits, and there are still ways that people abuse loopholes in the system. For example, a paying parent may increase their monthly pension contributions or register as self-employed/unemployed with the intention of lowering the amount of child maintenance they owe each month.

You Ask, Blanchards Answers 5 of Our Most Commonly Asked Questions

“I’ve recently separated from my partner. Where do I start with child maintenance?”

Due to the black and white nature of the way child maintenance works in England & Wales, when anyone reaches out to us about where to start with the process, we direct them to https://www.gov.uk/child-maintenance-service/how-to-apply. Here you can find out everything you need to know, be it your options for approaching your situation, your eligibility, and how to apply, if this is the route you’d like to go down.

Once you are in contact with the CMS, they will take your case from there.

Alternatively, you may want to arrange something privately. The government’s dedicated child maintenance calculator is a great way to get an understanding of how much child maintenance could be owed, but please remember that this is only an estimation of the payments rather than exactly what you would get if you went through CMS.

“What does child maintenance actually cover?”

Child maintenance covers the day to day costs associated with bringing up a child, including food, clothes, housing and enrichment. The parent with care may request additional support with costs associated with items such as school uniforms, supplies or trips, but fulfilment of these requests are at the discretion of the paying parent.

Ultimately, this financial support is designed to ensure that a child does not go without, so we recommend approaching whether or not to agree to one-off requests and occasions such as these on a case by case basis.

“How long does child maintenance last for?”

Child maintenance is typically required until the child completes full-time secondary education, including A Levels, which might be beyond their 18th birthday. If the child continues into full-time tertiary education, such as college or university, parents can agree to extend the support.

However, this extension is not automatically mandated and will require a mutual agreement or a specific court order where a mutual agreement cannot be reached.

“Will I have to go to court?”

In the vast majority of cases, all child maintenance claims are assessed, processed and mandated by the CMS. 

However, an application to the court may be required in certain circumstances:

• The CMS formula for calculating child maintenance payments can only factor in a gross annual income of up to £156,000. Where a calculation confirms that the paying parent’s annual gross income is above this, non-paying parents can make a claim to the court for a ‘top-up order.’
• Where there are expenses relating to a child’s disability, such as carers or an adapted home, the court can make a freestanding or top-up order to support with these costs. The amount payable is determined on a case by case basis.
• The court can also make an order for a contribution to the cost of school fees. This will require proof that the child is being privately educated, or that it was pre-agreed that the child would be privately educated. Again, this is determined on a case by case basis but generally speaking a court will take into consideration things like boarding school fees.

“Can child maintenance be backdated?”

Unfortunately, the process following circumstances where child maintenance payments need to be backdated is not as black and white as the initial assessment and claim.

The CMS cannot begin an assessment unless you and the other parents are physically separated; i.e. living in separate homes.

It is possible to backdate child maintenance, but there’s no definitive answer as to how far back payments can be backdated and it depends on the individual case and circumstances.

We recommend contacting the CMS as soon as possible following a divorce or separation, as the CMS will only be able to recover payments that have been missed from the time that the claim for child maintenance has been processed.

If you had a prior agreement with an ex-partner that did not go through the CMS, this would be considered an informal agreement and you’ll need to take civil action to recoup backdated or missed payments through the courts. This is definitely something to consider if a ‘family agreement’ is something you’re looking into.

Where there is an existing formal claim with the CMS, contact them as soon as possible if you notice missing payments. The CMS has far reaching powers to recoup funds or penalise the paying parent until payment is received.

Parting Advice

Whether you’re the parent with care or the paying parent, we recommend the following for maximising the chance of getting the child maintenance outcome you want:

• Get legal advice, particularly in complex cases.
• As a payer, never pay cash, as this can be easily denied. Always pay by bank transfer.

In most cases, the child maintenance agreement process is straightforward and the CMS is the best point of call for help, support, and guidance.

If your case is outside the norm and has extenuating factors like those we’ve outlined in this Ultimate Guide, our friendly legal advisors are available to discuss your situation.