Divorce - Maintenance and the Clean Break

Maintenance is usually paid for children until they reach the age of 17 or cease full-time education, whichever is the later.

There can be no clean break, (dismissal of maintenance rights), between parents and children. The parents' responsibility to provide financially for their children has now been set down in the Child Support Act 1991, which came into force on 5th April 1993 and has been followed by subsequent legislation including a further Child Support Act in 1995.

The Child Support Legislation governs the level of child maintenance that should be paid by a natural parent who is absent from the child's household to the parent with care. It does not cover step-children or school fees, but covers natural children up to the age of 17, or 19 if they are in certain types of full-time education.

The Child Support Legislation sets out a formula to calculate the level of child maintenance payable by the "absent parent". This is based essentially on each parent's income and certain outgoings, including housing costs. Your solicitor will be able to do a calculation for you. There is a general rule that an absent parent should not pay more than 30% of net income in maintenance. Under certain circumstances, a direction may be given to reduce the amount payable once calculated. Your solicitor will advise you if this applies to your case.

If the parent with care of the children is on income support, family credit or disability working allowance, he or she is obliged by the DSS to apply for an assessment by the Child Support Agency, (commonly referred to as the “C.S.A”), the organisation set up to assess, collect and enforce maintenance payments for children. If that parent refuses to make an application, he or she will be penalised by having their benefit payments reduced.

Other parents with care of the children may apply to the C.S.A for an assessment. They may however prefer to agree a figure for child maintenance, bearing the Child Support Act calculation in mind. If divorcing, this can currently be embodied into the court order made, which deals with all the financial aspects arising out of the divorce if agreed. This procedure may in the future be revoked, but your solicitor will advise you on any changes in the law as they happen. If a figure cannot be agreed, the only option for the parent with care is to apply for an assessment to the C.S.A.

If the absent parent can afford to make further payments for child maintenance in addition to those calculated under the child support legislation, a court can order that parent to make additional payments. A court can also make an order for school fees, maintenance for step-children or disabled children and for those in further education and in certain other specific situations. It should be noted that the C.S.A only has jurisdiction where both parents and the child are resident in the U.K. ; otherwise the Court will deal with determining child maintenance in the absence of an agreement.

There are currently further Government proposals to review the system determining child maintenance. Although there are no definite proposals as yet, The Green Paper “?” is at the C.S.A. Website.