Law Articles

Enforcing payment of child maintenance 22/04/2022

Child maintenance is a financial arrangement in which payment is made by one parent of a child to cover the costs of living of a child or children with whom they do not live. The underpinning principle of child maintenance is that both parents have an obligation to pay for the costs of raising their children irrespective of the extent to which they are in their lives.

The amount of child maintenance can be arranged directly between ex-partners, which is known as a family-based arrangement. Where an agreement between ex-partners is not possible, an application can be made to the Child Maintenance Service (CMS) to become involved in the payment of maintenance. The CMS will calculate the amount of child maintenance due one from parent to the other with reference to the paying parent’s income and other circumstances.

Payments when the CMS is involved will be made either on a “direct pay” basis, where the paying parent transfers the child maintenance payments direct to the receiving parent, or on a “collect and pay” basis where the CMS collects the payments from the paying parent before paying them to the receiving parent. Collect and pay incurs a 20% uplift to the amount the paying parent pays, and the amount the receiving parent gets is reduced by 4%. As such, a direct pay arrangement is preferable and the CMS will only operate on a collect and pay basis with the agreement of both parties, if it believes that the paying parent is unlikely to pay, or if other circumstances mean that direct pay is not an option.

If child maintenance has been agreed under a family-based arrangement this is not legally binding unless the agreement has been ratified by the court, and that therefore the terms of the arrangement cannot be enforced. In the event that a family-based arrangement for child maintenance breaks down, an application can then be made to the CMS.

If child maintenance has been dealt with in a consent order, the court can deal with non or late payment for the first twelve months, after which time jurisdiction passes to the CMS. However enforcement can be expensive and take a significant amount of time.

If child maintenance arrangements have been made through the CMS and the payments stop, are late, or are not made in full, the CMS has a range of powers to enforce payment. The decision as to which powers it exercises is entirely down to the CMS and neither parent will have any influence over those. Initially, it will contact the paying parent to find out why the payments are not being made in accordance with the agreement, seeking to restart them as soon as possible and an agreement on clearing arrears. If the paying parent does not engage with the CMS or does not clear any arrears, the CMS can move payments from direct pay to collect and pay, and will continue to seek voluntary agreement from the paying parent to restart regular payments and pay arrears.

If no agreement can be reached, the CMS has a wide range of enforcement powers including applying to the court for a liability order, which formally recognises the amount of maintenance debt arrears over a period of time. The CMS can only use one method of enforcement at a time.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.