Have you ever heard a comment along the lines of ‘ if the parties agree, a clause can be included in a consent order for the payment of child maintenance. The terms of that clause will be valid for one year but after that the child maintenance part of the order will not be worth the paper it is written on?’. Probably if you have had to negotiate a financial settlement when getting divorced.
As a general rule, the courts don’t have the authority to deal with child maintenance except in very limited circumstances. Any dispute between parents regarding child maintenance has to be dealt with through the Child Maintenance Service (CMS). Where there is a dispute, either parent can make an application to the CMS for a maintenance calculation. The courts can only deal with child maintenance:
This blog considers the extent of the courts continuing powers and involvement in the circumstances described in the first example above.
There is a common misconception with this type of Order. People believe once this type of order is made by the court, the part relating to the maintenance of the child is only valid for one year. This could be because of the way the legislation is drafted. If the parties agree a consent order regarding child maintenance, neither party can make an application to the CMS for one year from the date of the Order. This means that after a year, either party can apply to the CMS. If they do this, then the part of the Order dealing with the child maintenance becomes redundant. What if no application is made to the CMS after a year? Simple, the part of the Order dealing with child maintenance remains effective. It remains effective until the CMS have completed their calculation.
What happens if neither makes an application to the CMS but the paying party has stopped paying maintenance? This can be enforced by the court. It means that the court can apply its wide ranging powers to enforce the order against the paying party.
If you pay child maintenance but are struggling to pay it, I suggest you make an immediate application to the CMS. You should continue paying the child maintenance until the CMS has completed the calculation. Once this is done, you should pay the amount required by the CMS.
If you do not make an immediate application to the CMS, you should consider making an application to the court to vary the level of child maintenance payable. In the end, the court is likely to suggest you apply to the CMS.
If you would like further information, contact Alberta Tevie at email@example.com