What if the paying parent’s income has reduced?
While the legal obligation for child maintenance is solely income based, it is advisable to consider the needs of the children as well as the situation of the resident parent before making changes. This is a difficult time for many children who are adjusting to staying at home. An unnecessary change in finance can prove detrimental to their wellbeing, so it is important to remain as child focused as possible. Because of this, some parents will choose to keep up payments.
If you pay child maintenance but cannot keep up payments whilst meeting your own basic needs, we recommend that you have an initial conversation with your former partner. If you understand each other’s situation you may find a compromise such as reducing payments for a short period, or deferring payments while waiting for any applicable government finance schemes to come through.
It is important to note that if you are paying child maintenance through the Child Maintenance Service (CMS) they will only consider a formal adjustment if your salary has changed by at least 25%.
How long should any adjustments continue?
Whilst lockdown feels long, please remember that it is only a temporary measure and many income reductions will also be temporary. Any changes to child maintenance should reflect this.
Where safe to do so, we encourage parents to communicate and resolve financial issues together so that animosity is not created and does not continue when lockdown lifts. In all cases, changes should be recorded in writing so that evidence can be provided if either of you raises issues with the variation at a later date.
What if the paying parent has lost their job?
In this situation child maintenance payments could stop. Parents with capital may choose to continue supporting their children, others will be unable to do so. In some circumstances, the non-resident parent may be able to provide valuable practical help instead. This could mean increasing their time with the children so the resident parent can continue working, or assisting with home schooling older children. Other practical assistance like providing a food shop, home school supplies or entertainment activities may contribute towards meeting the children’s overall needs during this difficult time.
What if our arrangement is more complicated?
Child maintenance is not always straight forward. In addition to family-based arrangements, there are more complicated arrangements through the Court or CMS.
Below we answer two specific questions about child maintenance payments. The answers will provide some guidance on steps that you can take to remedy your own situation or when to seek help from a legal professional.
Question 1: My ex-partner has been furloughed and says child maintenance will stop
My ex-partner pays child maintenance through the Child Maintenance Service (CMS). His company has furloughed him and he sent me a message saying that child maintenance will stop immediately. I didn’t receive the payment for this month. When he has missed payments before I spoke to the CMS and they chased him, but I can’t get through to speak to them about this on the phone.
Answer: Many employees have been furloughed using the government Coronavirus Job Retention Scheme. Under the scheme the government pays 80% of the employee’s wages and the company can optionally chose to pay the remaining 20%.
If the paying parent has been placed on a furlough then it should not trigger any change in their weekly child maintenance liability. This is because the CMS only consider changes of income when they have increased or decreased by 25%.
The CMS is open, but experiencing a shortage in staff as many have been redeployed to work on speeding up Universal Credit claims. A reduced phone service is operating between 9am – 3:30pm Monday to Friday only. To ensure that the service is not overloaded they have notified all users that the service will only take calls in certain circumstances and will not deal with missed payments over the phone. If a payment has been missed or is less than expected, this must be reported through CMS online portal.
The advantage of notifying CMS through the portal is that evidence of non-payment can also be uploaded. This can include any messages from the paying parent stating that maintenance will be unilaterally decreased to nil, and bank statements to show incorrect funds have been received.
Unfortunately, due to delays caused by the global pandemic, CMS estimates it will take 6 – 12 weeks to process enquiries. However, rest assured that when CMS can deal with your case, they will be applying those arrears.
Question 2: I cannot afford to pay my court ordered child maintenance
I pay child maintenance for my two children which was agreed as part of a court order. I’m in a real financial bind with the pressures of the pandemic and I’m worried I could fall into debt. I just can’t afford to make ends meet and keep up payments on the place that I live if I also need to make these really high payments for the children. Can I vary the payments?
Answer: The options to vary child maintenance payments recorded in a Court Order very much depend on when the Order was sealed by the Court and the clauses contained in the drafting. Factors like the date, special clauses and the possibility of enforcement need to be considered. We will look at each of these in turn.
Date – Any Court Order made in England and Wales between 5th April 1993 and 6th April 2002 (where the receiving parent is not in receipt of income support) must be varied through the Court as they retain jurisdiction.
If an Order was made after 6th April 2002 and has passed its first anniversary, the child maintenance element can be brought to the Child Maintenance Service for an assessment. The matter will only be considered formally transferred once the CMS have received the appropriate fee and full details of all parties. Once this happens the child maintenance clause in your Order becomes null and void.
It is also important to note, that CMS calculates on the previous tax year (2019-20) meaning that child maintenance liability could be increased or decreased when compared to your original Order. A recalculation is possible if the paying parent’s income has changed by 25% since the last tax year or if you are now in receipt of benefits.
If an Order is less than one year old, the child maintenance clause is binding and cannot be transferred to CMS. Payments must continue until the first anniversary of the Order unless there is agreement of both parties or an application to vary is granted by the Court.
If you need to make a change, we recommend that you first contact the receiving parent to explain the situation. If that is not possible, or the desired progress is not made, a mediator or family solicitor could aid the negotiation process. We strongly recommend that any negotiation achieved should be recorded in writing, ideally in the form of a Consent Order and lodged with the Court.
In matters where negotiation is unsuccessful, it would be appropriate to ask the Court to review the Order, to decide if child maintenance should be varied.
Special Clauses – Some Orders contain special clauses such as contractual agreements and ‘Christmas Orders’.
Contractual arrangements can be stand alone or in addition to a Court Order. Where a parent has signed a contract to make maintenance payments, then varying payments would be breaching the contract. As changes to payments can result in serious repercussions, including being ordered to pay damages, judgement summons and potentially even bankruptcy, it is essential to seek legal advice.
Some orders contain what is known as a ‘Christmas Order’. This means that the child maintenance element of the Order renews annually and is therefore never over 12 months old. This means you cannot transfer the matter to the CMS. Any change to this Order would need to be by agreement of both parties and recorded in a further Consent Order or by application to the Court.
Risk of Enforcement – We strongly recommend taking take legal advice before making unilateral changes to Court Ordered child maintenance payments. This is because Court Orders made in the jurisdiction of England and Wales (while the paying party resides there) could be subject to an Enforcement Order.
A judge hearing such matters has a wide range of enforcement actions available to them including: ordering that any maintenance owed can be taken directly from earnings; placing a change on property or other assets; sending bailiffs to seize belongings; freezing funds in bank accounts.
As the repercussions are so serious and can have long term effects on your financial situation, it is important to take advice from a specialist at the earliest opportunity.
In summary, where there is a Court Order in place for child maintenance it is essential that you obtain the benefit of early advice.
Legal Advice
At Allard Bailey Family Law we can assist in leading any negotiations with your former partner, our extensive experience with both variations and enforcements allows us to provide guidance on what may be acceptable to Court.
To book a virtual consultation or telephone appointment with one of our team, please call 020 7993 2936.
