Child maintenance can be influenced by many factors and the rules vary depending on your situation. It often helps to have legal support to avoid emotion clouding this serious issue.
There are numerous factors that can affect how much child maintenance you should pay or receive and we always advise that you contact us first to discuss your specific circumstances.
You should bear in mind that child maintenance differs from country to country. It is quite possible that a claim can be lodged in the country in which the mother, father, or child lives, even if you do not all live in the same country. If your family members live in different countries there may be jurisdiction in more than one country.
If the mother, father and the child all reside in England and Wales then the general rule is that the Child Maintenance Service (CSM) has jurisdiction, not the Courts. People are encouraged to reach agreements between themselves, although if this is not possible, the CSM will deal with the case. However, exceptions apply in which the Courts can retain jurisdiction to deal with specific issues relating to child maintenance (top-up orders or school fees orders, for example).
It is worth noting that if care is truly shared equally, no child maintenance is payable. However, if one parent receives child benefit then there is a rebuttable presumption that the parent is providing care for the child and should receive child maintenance.
In most cases, the Child Maintenance Service (CMS), which replaced the Child Support Agency (CSA) back in 2012. Where the mother, father and child all live in England and Wales, the courts generally do not have jurisdiction to deal with child maintenance, and the CMS is the main route. Parents are encouraged to reach agreements between themselves first, and only turn to the CMS if that is not possible.
There are important exceptions. The courts retain jurisdiction to make “top up” orders where the paying parent’s income is above the CMS ceiling, and to make orders for private school fees. The courts can also deal with child maintenance where the case has an international element, for example where one of the parties lives abroad.
Where care is genuinely shared equally between the parents, no child maintenance is payable. In practice, though, it is not always straightforward to establish that care is truly equal. If one parent receives child benefit for the child, there is a rebuttable presumption that they are providing the care and should receive child maintenance, so the other parent would need to show that the reality of the arrangement is different.
Yes. Where there is an international element, the English courts can take jurisdiction, and claims can potentially be brought in more than one country. Which forum is best will depend on the circumstances, including where each parent’s income and assets are, and the local rules in the other country.
Yes. Because you as the paying parent live in England and Wales, the English courts will generally have jurisdiction, and a claim for child maintenance can be brought here even though the child does not live in this country. Depending on the family’s connections, a claim may also be possible in the country where the child lives.
A top up order is a court order for additional child maintenance on top of the CMS assessment, made in cases where the paying parent’s income is above the level that the CMS can assess. It allows the courts to make sure the child’s needs are properly met in high income families, rather than being capped by the standard CMS formula.
Yes, in appropriate cases. This is one of the specific areas where the courts, rather than the CMS, retain jurisdiction. A school fees order can require the paying parent to cover, or contribute to, school fees and extras such as uniform, trips and after school activities. Whether an order is made will depend on affordability and, usually, whether private education was already part of the family’s arrangements.
No, not for child maintenance itself. Child maintenance is based on the relationship between parent and child, not on whether the parents were married. In addition to CMS or court based maintenance, unmarried parents can also bring wider financial claims for the benefit of the children under Schedule 1 of the Children Act 1989, for example for a lump sum or provision of a home for the children to live in.
Do not let it drift. If the CMS has jurisdiction, they have enforcement powers, but these can be slow and are not always effective, particularly where the paying parent is self employed or based abroad. Where the courts have jurisdiction, proceedings can be issued to establish an order, and further enforcement steps taken if payments are not made. Early legal advice is important, especially in international cases, where securing the right jurisdiction quickly can make a real difference.
The Child Maintenance Service (CMS) deals with cases in which the whole family, i.e., child, receiving parent and paying parent reside in England and Wales. If the case has an international element, for example, if the child resides elsewhere and only the paying parent resides in England and Wales, then the Courts have jurisdiction to deal with the case. The Courts also deal with a number of other child maintenance issues, such as top up awards.
Die Anwaltskanzlei Beyer Family Law Solicitors ist ausschließlich im Bereich des internationalen Scheidungs- und Familienrechts tätig.
Kerstin Beyer – Beyer Family Law Solicitors – Solicitor (England und Wales), Rechtsanwältin (Deutschland, nicht praktizierend), Summit House, 12 Red Lion Square, London WC1R 4QH. Zugelassen und beaufsichtigt durch die Solicitors Regulation Authority.
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