If you are involved in court proceedings to divide assets following a divorce, dissolution of a civil partnership or separation of non-married parties, maintenance for children is most likely to be a factor where children are involved.
Non Resident Parent
The parent who does not live with the child full time and who does not have day-to-day care of the child is known as the non-resident parent. They have a responsibility to pay child maintenance up until the child is a minimum of 16 years old or a maximum age of 20 years old if the child decides to stay enrolled in full time education.
Full time education is defined as being more than 12 hours per week and includes A-levels. Child maintenance is still payable during school breaks and if a child turns 16 years old and leaves school in the summer, child maintenance is usually still payable up until the first week of September of that year.
Non-resident parents do not have to pay child maintenance if the child decides to continue education to advanced study after A-levels, such as college or university. At that point, children are deemed able to work and pay for themselves.
Private Child Maintenance Agreements
Child maintenance can be agreed privately by the parties directly or through solicitors. Private agreements can be recorded on a private agreement form through the Child Maintenance Options.
This is a flexible option whereby both parties can agree on the amount payable and can change the maintenance rates by agreement if their circumstances change. In addition neither party will have to pay the Child Maintenance Service fees.
However, privately agreed maintenance agreements are not legally binding. If the non-resident parent decides to stop paying the child maintenance agreed, the resident parent cannot enforce the agreement.
Application to the Child Maintenance Service (CMS)
If an agreement cannot be made between the parties, the resident parent can make an application to the Child Maintenance Service. There is an online calculator available to help calculate the amount that the non-resident parent will have to pay a month.
The resident parent can apply to the court to have the private agreement or application to the CMS turned into a consent order to make the agreement legally binding.
If the court makes the order and the non-resident parent fails to pay the maintenance agreed in the consent order, the court will have the power to enforce the order.
Periodic Maintenance Payments and other Financial Provisions
Under the Children Act 1989 the non-resident parent or resident parent can apply to the court for child maintenance to be paid by way of periodical maintenance payments, a lump sum or by a transfer of property into the sole names of one of the parents.
When deciding an application the court will consider all information in the case and in particular the welfare of the child and will look at the following factors:
- the income, earning capacity, property and financial resources of both parties now and in the future;
- the financial needs, obligations and responsibilities of the parties now and in the future;
- the financial needs of the child;
- the income, earning capacity, property and other financial resources of the child;
- the physical or mental disability of the child and;
- how the child is or is expected to be educated or trained
Any financial provision that the court orders will last until the child reaches 18 unless they are still in full-time education or there are special reasons why the child maintenance should be continued, for example if the child has a disability.
Mediation before Application
Please be advised that before the parties apply to the court as above, the parties are expected to try and resolve their issues through negotiation and mediation.
We Can Help
At McMillan Williams, our mission is “To make quality legal services accessible to everyone” including those families struggling with Child Maintenance issues.
If you are going through a separation or wish to talk to one of our specialist family solicitors dealing in Child Maintenance issues please call us on 020 3551 8500 or email us at email@example.com