Financial claims and maintenance for children

The breakdown of a relationship that leads to separation is never easy for you and your family. Along with all the other considerations, legal parents also have a duty to provide for their children financially.

Usually, if you are the parent who is not living with your children following a separation then you should contribute financially to the other parent for your children’s care. Often this is by way of regular maintenance payments and/or the provision of assets or capital lump sums (such as providing a home). However, if the arrangements for financial support cannot be agreed, there are various legal steps that can be taken to resolve your dispute and our child maintenance solicitors can help you with this.

Child maintenance

Child maintenance is a regular, agreed sum of money provided to help meet the day-to-day costs of looking after your child. It covers items such as clothing and food. If you are able to agree the amount, it is not normally necessary for the courts or the Child Maintenance Service (CMS) to become involved.

The CMS is the body responsible for calculating and collecting child maintenance. The underlying aim of the CMS is to encourage parents to work collaboratively and to agree on maintenance arrangements using a Family-Based Arrangement (a voluntary arrangement), rather than resorting to using the statutory framework for calculating child maintenance. They will be able to help you with all matters involving child maintenance, including:

• locating and liaising with the other parent
• calculating and arranging the maintenance payment
• making amendments if circumstances change
• taking action if payments are not made.

In order to help you understand your options, we have outlined the different ways of reaching a financial settlement below:

• Family-based arrangements

These are child maintenance arrangements that you, as parents, agree directly and voluntarily. You will need to work out exactly what your child needs on a day-to-day basis and decide how you will share the cost. It is helpful to put your agreement in writing but this does not make it legally binding. If the agreed payments are not made you will not be able to enforce the agreement through the court. If you are the paying parent it is also recommended that you make payments by standing order or by bank transfer so they can be seen on your bank statements and provide evidence that payments have been made in order to prevent any future allegations of non-payment.

• Help from the Child Maintenance Service

If you cannot agree to a family-based arrangement, or if the agreement breaks down, then an application can be made to the Child Maintenance Service for a statutory child maintenance calculation. The CMS will then decide how much the absent parent should pay to the receiving parent based on a standard formula, and can also collect and pass on payments if required. They base their decision on the gross (before tax) weekly income of the absent parent for the previous tax year. Once this figure is known, the maintenance calculation can then be carried out.

The CMS will look at the paying parent’s circumstances such as how many times a week the child spends overnight with the paying parent and the CMS will take it into account if there are children living with the paying parent. More information on the process is available via the government’s child maintenance calculator.

If you ask the CMS to make a child maintenance calculation, certain fees will apply. You will also have to pay additional costs if the CMS is responsible for collecting and paying the maintenance payments, rather than payments being made directly to the receiving parent. Our child maintenance solicitors encourage parents to reach a family-based arrangement, as these fees can be quite significant.

Financial orders for children on divorce or dissolution

The court has the power to make wide-ranging financial orders in relation to couples who are married or civil partners and this includes orders designed to make provision for children. The court might order that you should pay regular maintenance or school fees, or that you should own or have the right to continue living in a shared home if you are caring for children. All of this will be considered by the court as part of the process to resolve your financial dispute.

These particular court orders are relevant to any child who is considered a ‘child of the family’, including stepchildren and children who are conceived through assisted reproduction and are not the legal children of both of you. However, it only applies to parents and stepparents who are married or in a civil partnership.

The courts can also make financial provision orders for the benefit of your children under Schedule 1 of the Childrens Act 1989. These types of orders are suitable for unmarried couples following a separation and frequently accompany applications under the TOLATA. The Court can make one or more of the following financial orders:

• Child maintenance (in addition to the maximum maintenance as assessed currently by the CMS), which can include the cost of a nanny, school fees and, in some cases, the costs of university education
• A capital lump sum for costs directly referable to your child (for example, the purchase of a car or the costs of equipping your child’s home)
• A transfer or settlement of property (on trust) for the purpose of providing a home for your child during their minority (which will mean that once your child completes their secondary or tertiary education, the property which was transferred or held on trust will be returned to the parent who funded or provided it)

The court will take into account both statutory and extra-statutory factors when deciding on the content of such orders. The court takes into account all the circumstances of the case when deciding what order to make, including:

• The income, earning capacity, property and other financial resources which any parent of your child (or the applicant or person in whose favour the court proposes making the order) has or is likely to have in the foreseeable future
• The financial needs, obligations and responsibilities which any parent of your child (or the applicant or person in whose favour the court proposes making the order) has or is likely to have in the foreseeable future
• The financial needs of your child
• The income, earning capacity (if any), property and other financial resources of your child
• Any physical or mental disability of your child
• The manner in which your child was being, or was expected to be, educated or trained
• And in the case of step-children:
  • Whether a person who is not the mother or father of your child had assumed responsibility for the maintenance of your child, and if so, the extent to which and basis on which he or she assumed that responsibility and the length of the period during which he or she met that responsibility
  • Whether a person who is not the mother or father of your child assumed responsibility for the maintenance of your child knowing that he or she was not his or her child
  • The liability of any other person to maintain your child

Court orders are made with your child’s best interest in mind and not the parent. So they will focus on the financial needs of your child, particularly any special needs, disabilities or education needs they may have.

Divorce and children – useful resources

The Resolution website is a valuable resource for advice when telling your children about your divorce or separation and tips on managing your relationship with your ex. You will also find advice on how to manage activities and events out of two homes, and advice for coping with difficult situations such as domestic abuse, addiction and parental alienation. There is also recommended reading, online resources, legal facts and a glossary, as well as details of Resolution’s new parent workshops to help parents manage the impact of their divorce or separation for their children.

Another useful online resource is CAFCASS, which offers practical advice and an interactive document to help you create a parenting plan for your children.