Children are expensive and often want to attend clubs such as football, brownies, dance, or swimming, and go on school trips. All these things demand a financial contribution from parents, but should someone who is paying child maintenance pay for additional extra-curricular activities and expenses beyond this? This article looks at the issues.
Children are expensive and often want to attend clubs such as football, brownies, dance, or swimming, and go on school trips. All these things demand a financial contribution from parents, but should someone who is paying child maintenance pay for additional extra-curricular activities and expenses beyond this? This article looks at the issues.
If you have concerns about your finances and child maintenance and you feel you need legal advice, contact specialist family solicitor Mark Heptinstall of Slater Heelis Solicitors. He is recognised as a ‘Leading Individual’ in The Legal 500 and ranked in Chambers UK, and is described as having “the amazing ability to bring calm into troubled waters”.
Overall, the basic cost of raising a child from birth to the age of 21 is estimated to be around £221,000. So it is often asked by non-resident parents whether they can be forced by their ex into paying towards other things when they are already paying child maintenance. The short answer to this is generally no. If you are paying child maintenance in accordance with the relevant guidelines, there is no obligation to provide additional financial support. Of course, there are no rules against a non-resident parent making voluntary contributions if they can do so. However, they cannot be forced into it in most cases.
What circumstances can someone be forced to make child maintenance payments?
In some situations, if a non-resident parent is a higher-earner and the parent with care is incurring costs in relation to housing the children, childcare, private school fees or other activities which are not sufficiently covered by child maintenance, it is possible to seek an order under Schedule 1 of the Children Act 1989 for further financial help.
With the growing number of cohabitees, the amount of Schedule 1 cases are increasing dramatically, and are no longer considered to be the purview of the super-rich. However, because the court has such a wide discretion when deciding these cases, the unpredictability of outcome is a real concern for both sides.
What does Schedule 1 of the Children Act give the court power to do?
A parent, special guardian, guardian, or person with care under the terms of a Child Arrangements Order, can apply to the court for financial provision of a child. It is important to note that the claim can only relate to the needs of any children and not the needs of the person with care. The court has the power to make the following orders for the benefit of the child to the parent with care on the child’s behalf or to the child themselves:
- Secured periodical payments
- Periodical payments
- Lump sum orders
- Transfer of property
- Settlement of property
It will also be necessary for each parent to provide the court with detailed information about their financial situation. In addition, the court will consider several factors when determining the level of financial provision the child should receive. These include:
- The financial circumstances of each parent, both at present and in the future
- The financial needs of any children
- The income, earning capacity (if applicable), property and other financial resources of the child
- The manner in which the child was being, or was expected to be, trained, or educated
Do I have to pay child maintenance and the mortgage?
If you are paying child maintenance under a Child Maintenance Service (CMS) assessment, you may think that the payments should cover the cost of the mortgage. However, whether you are legally required to do so depends on a number of factors.
If you are not married to your ex and they own the family home in their sole name, then all you are legally entitled to pay is child maintenance. Although, if you are a high-earner as discussed above, your ex may be able to make a claim via Schedule 1 of the Children Act to cover the costs.
If you are married and the family home is in your ex’s sole name, then if the child maintenance payments are not sufficient to cover the mortgage payments, then your ex could apply to the court for spousal maintenance.
If you are paying child maintenance under a CMS assessment but you are also paying the mortgage on the former family home, you can ask the CMS to carry out a special expenses variation to reduce the amount of child maintenance payable. The variation application can only be made if you don’t have any legal or beneficial interest in the property. So if you are a joint owner and jointly and severally liable for the mortgage, you cannot ask for a variation.
Special expenses and variations in child maintenance
The CMS permits adjustments to the standard child maintenance calculations to account for certain expenses incurred by the paying parent. These are known as ‘special expenses’ and can lead to a reduction in the assessed maintenance amount. Key categories include:
- Travel costs for contact: If the paying parent incurs significant expenses to maintain regular contact with their child, such as fuel or public transport costs, they can apply for a variation. To qualify, these costs must exceed £10 per week.
- Costs related to a child’s disability or long-term illness: Additional expenses directly associated with supporting a child who has a disability or long-term illness can be considered for a variation. This ensures that the paying parent’s financial responsibility reflects the higher costs of care.
- Boarding school fees: If the child attends a boarding school, the paying parent can request a variation to account for the boarding (living) costs portion of the fees, provided these expenses are at least £10 per week. It is important to note that only the boarding costs are considered, not the educational fees.
- Debts from a previous relationship: The CMS may consider debts that the paying parent is repaying, which were incurred for the benefit of the family before separation. For instance, if the paying parent continues to pay a loan for a car that the receiving parent now uses, and these payments are at least £10 per week, a variation can be applied for.
To apply for a variation, the paying parent must provide detailed information and evidence supporting their claim. The CMS will assess whether the application is ‘just and equitable’ before making a decision.
Additional income considerations in child maintenance calculations
The CMS primarily calculates maintenance based on the paying parent’s gross weekly income. However, certain types of additional income can be considered to ensure a fair assessment:
- Unearned income: This includes rental income from properties, dividends from investments, and interest from savings. If such unearned income exceeds £2,500 annually (at the time of writing), it can be included in the maintenance calculation.
- Notional income from assets: If the paying parent owns assets valued at £31,250 or more (at the time of writing), the CMS can attribute a ‘notional’ income to these assets, reflecting potential earnings they could generate. This ensures that substantial assets are considered in the maintenance assessment.
- Earned income while receiving benefits: If a paying parent is receiving benefits but also has additional gross income from employment, self-employment, or a pension amounting to at least £100 per week, this income can be factored into the maintenance calculation.
- Diversion of income: In cases where the paying parent may be redirecting income to another person or purpose to reduce their assessable income, the CMS can investigate and adjust the maintenance calculation accordingly.
Either parent can ask the CMS to consider these additional income sources by applying for a variation. The application should include comprehensive information to support the claim, and the CMS will evaluate its fairness before making adjustments.
Impact of shared care on maintenance payments
Shared care arrangements, where the child spends a significant amount of time with both parents, can influence the amount of child maintenance payable. The CMS defines shared care in increments of overnight stays per week:
- 52 to 103 nights annually: Maintenance is reduced by 1/7th for one night per week.
- 104 to 155 nights annually: A reduction of 2/7ths is applied.
- 156 to 174 nights annually: The reduction increases to 3/7ths.
- 175 or more nights annually: Maintenance is reduced by 50%, with an additional £7 per week deduction.
To ensure accurate calculations, it is essential for parents to maintain detailed records of the shared care arrangements, including dates and durations of overnight stays. Providing this evidence to the CMS will help in determining the appropriate maintenance amount.
What happens if circumstances change?
Life changes can significantly impact a parent’s ability to pay or the need for child maintenance. It is crucial to inform the CMS promptly of any relevant changes, such as:
- Job loss or change in income: If the paying parent becomes unemployed or experiences a substantial change in income, they should notify the CMS to request a reassessment of the maintenance amount.
- Change in living arrangements: If the child starts living with the paying parent or no longer qualifies for maintenance due to age or educational status, the CMS should be informed to adjust or terminate the maintenance arrangement accordingly.
- Remarriage or new children: While remarriage itself doesn’t directly affect maintenance calculations, having additional children can influence the assessment. The CMS may reduce the maintenance amount to account for the paying parent’s responsibility towards their new dependents.
Prompt communication with the CMS ensures that maintenance calculations remain fair and reflective of current circumstances.
Enforcement actions for missed payments
The CMS has several enforcement methods to recover unpaid child maintenance when a paying parent fails to meet their obligations. These measures escalate in severity depending on the level of non-compliance.
- Direct debit or deduction Orders: The CMS can collect payments directly from the paying parent’s wages via their employer (Deduction from Earnings Order) or take money directly from their bank account (Deduction Order). These deductions ensure regular payments are made without requiring the parent’s cooperation.
- Deductions from benefits: If the paying parent receives certain benefits, such as Universal Credit or Jobseeker’s Allowance, the CMS can take a fixed amount directly from these payments to cover child maintenance obligations.
- Liability orders: If payments remain unpaid, the CMS can apply to the courts for a liability order. This grants them legal authority to take further enforcement action, including asset seizure.
- Bailiff (enforcement agent) action: With a liability order in place, the CMS can send enforcement agents to seize and sell the paying parent’s assets to recover outstanding maintenance.
- Charging and collection fees: If the CMS has to intervene to collect payments, additional fees may be charged to the paying parent. These fees are meant to encourage voluntary compliance.
- Property seizure and freezing bank accounts: The CMS can place charges on the paying parent’s property or freeze their bank accounts to secure overdue payments.
- Passport confiscation and driving licence removal: In cases of persistent non-payment, the CMS can request the court to confiscate the paying parent’s passport or driving license as a penalty.
- Prison sentences: As a last resort, if a paying parent continues to refuse payment despite enforcement actions, the court can impose a prison sentence of up to six weeks.
The CMS typically takes enforcement action after several missed payments. However, the speed of enforcement depends on factors such as the amount owed and previous compliance history.
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