We all know how expensive childcare and nursery costs can be when you are a couple, but the situation can be exacerbated if your relationship breaks down. Ideally, it is best to sort out childcare or nursery costs with your ex as soon as you separate if you are to minimise disruption on the child. And this includes resolving things like who pays, and whether such expenses are part of child maintenance payments?
We all know how expensive childcare and nursery costs can be when you are a couple, but the situation can be exacerbated if your relationship breaks down. Ideally, it is best to sort out childcare or nursery costs with your ex as soon as you separate if you are to minimise disruption on the child. And this includes resolving things like who pays, and whether such expenses are part of child maintenance payments?
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Fundamentally, paying nursery or childcare costs are largely determined with reference to the ability of either party to pay, their standard of living, and any expectations of how a child is, or was, planned to be educated. In certain circumstances, the court can make an order for one or both parties to contribute to the fees, often including a sum towards reasonable “extras” on the school bill if agreed in advance. Each case is highly fact-specific, so early specialist advice should be taken to discuss the way forward.
Nursery and childcare fees during divorce
During divorce or dissolution proceedings, school fees (this includes nursery and/or childcare costs) orders can be made by the court in appropriate cases. They are considered in conjunction with the financial remedy process and decided in large part on the ability of the parties to pay once other financial obligations and responsibilities have been discharged, including child and spousal maintenance.
The judge has wide discretion in deciding how the matrimonial pot available for distribution should be shared. In applying that discretion, they will consider the factors contained in section 25 of the Matrimonial Causes Act 1973, which looks at the income and earning capacity of each party both at the time of the case and in the future, the financial needs, obligations and responsibilities of the divorcing couple, the standard of living prior to marriage breakdown, and any mental or physical disability of either party. That said, first consideration must be given to the welfare of any child under the age of 18.
If you are already divorced but the original financial order omitted any reference to nursery fees or childcare costs, perhaps because the child was too young for this to be a consideration at the time, an application can be brought under Schedule 1 of the Children Act 1989. Whether this is successful, depends on the court’s analysis of income and expenditure. But if it is satisfied that the nursery or childcare fees are affordable, the application is likely to succeed. Schedule 1 applications in respect of child maintenance can also be made by unmarried parents who were formerly cohabiting.
Making an application to court should always be a last resort rather than a first, particularly when needing to resolve far-reaching disputes regarding children. Attending mediation before making any application is mandatory unless one of the few exemptions applies, so it is sensible to use that opportunity to negotiate nursery or childcare fees with your ex. Here are our suggestions for a way forward.
Working out the childcare costs
Write down all the regular and occasional costs that are connected with bringing up your children. This will give you a realistic idea of the outgoings, and may also be useful to bolster your position in later discussions with your ex if necessary. You should include food, clothing, childcare fees, travel, and any other regular expenses you pay for your child, such as swimming lessons. The Department for Work and Pensions website provides a helpful worksheet entitled “working out the cost of raising your children”, that will keep you focussed. The form can be used as a guide to help you think about the items you would like to include in your child maintenance arrangement. Because expenses change depending on the child’s age, the form deals with everything from babies through to teens.
Checking the Child Maintenance Service (CMS) calculator
Generally, there are two ways to arrange child maintenance. The first is to discuss all the child related expenses you have identified in your list above, and come to a private arrangement with your ex. A lot of separating couples use the CMS calculator to obtain a rough figure as a jumping off point for discussions. This will show you how much the governmental department is likely to set if you use its services to arrange payments.
If you cannot agree on a figure, then you have the option to apply to the Child Maintenance Service to make an award. Either way, you will need some information about your ex: their income, state pension, benefits, how many nights your children spend with them, and any other children they pay maintenance for or are living with.
It is important to note that parents do not have to pay child maintenance if they share care duties equally, are a full time student with no income, or they are in prison. In addition, the CMS only looks at income of up to £3,000 per week (approximately £150,000 per year). If your ex earns more than this, then a private child maintenance arrangement is probably more appropriate. However, it could mean going to court.
What should I do with my child maintenance calculation?
If you aim to make a private arrangement for child maintenance with your ex, then your calculations are a great place to start discussions. This only tends to cover general living costs, so any extras will need to be negotiated. From knowing the amount you spend on nursery or childcare fees, you will be able to see whether the calculation comes close to what you’ll need to cover them. If the calculation is lower than the actual expenses figure, negotiate with your ex to work out the difference.
What if we can’t agree child maintenance privately?
This is where you may opt to use the CMS, which can:
- Work out an amount to pay
- Arrange payment schedules
- Take action if a parent doesn’t pay
They can also trace a missing parent if you don’t know where they’re living and sort out disagreements about parentage by arranging DNA tests.
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