Non-resident parents i.e. parents who do not have the child(ren) a majority of the time will need to consider whether they are liable to pay child maintenance to the primary carer. Traditionally, the formula used in calculating how much a non-resident parent should pay has been notoriously complex and difficult to understand.
Initially, an old scheme was devised by the Child Support Act 1991 which aimed to relieve the courts from having to deal with child maintenance by giving more powers to the Department of Work and Pensions and the Secretary of State. There are now effectively three schemes:
- the old scheme
- the net income scheme; and
- the gross income scheme
Whichever scheme is applicable to you, the entire system is administered by the CSA (Child Support Agency) and the CMS (Child Maintenance Service). This includes calculating the liability of child maintenance due as well as enforcing any outstanding payments.
The CSA have the power to assess child maintenance when there is a ‘qualifying child’, a Parent With Care (PWC), a Non-Resident Parent and all three are resident in the UK. It is important to be aware that the CSA will not assess child maintenance where either the PWC or the NRP live outside of the UK as their powers do not extent internationally.
If you made a claim for child maintenance before August 2012 but after 2008, your assessment will be carried out under the ‘net income scheme’. This method of calculation uses a percentage formula based on the NRP’s net income and does not take into account the PWC’s income at all. Reductions can be given for every night of overnight contact in any one year in excess of 52 nights per year. There was historically no cost for seeking an assessment by the CSA.
If a NRP or a PWC makes a claim for child maintenance after August 2012, this will be based on the gross income of the NRP. Again this is carried out by the CSA or CMS. The method of calculation in this scheme uses a formula based on the NRP’s gross income and again, does not take into account the PWC’s income at all when assessing liability.
There is a fee payable to the CMS of for all applications made after 11 August 2014. This fee equates to 20% of the daily amount of maintenance payable and 4% of the child maintenance collected by the CMS and both the NRP and PWC are required to pay. The idea behind this fee was to encourage parents to try to resolve child maintenance issues without the need to go through the CSA. Further fees are payable for deductions by the CMS from the NRP’s earnings, any regular deductions orders and any applications for a liability order.
The role of the CMS and CSA does not preclude the court from making orders relating to the children in divorce cases. As mentioned above, the CSA have no jurisdiction if either parent live outside of the UK. Furthermore, the court can make ‘top up’ orders where it considers the child maintenance calculation by the CSA to be insufficient to meet additional needs of the children. These orders are common where for example a child attends private school, has extra curricular activities or has a disability.
Child maintenance form a part of finance discussions for married couples who separate. It is important that you get legal advice early on in your separation so that you are fully aware of the options available to you. Speak to one of our solicitors at Hunter & Uro. We offer free initial consultations to enable you to decide how best to move on. Serving Bedford and London, our lawyers can help you with your family law and divorce matters. Contact us on 01234 889777 or 0207 177 9777 for more information.