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Child Maintenance – Supporting Children After Divorce or Separation

September 25, 2023 By Stephanie McCarron Family Law

The purpose of child maintenance is to cover your child’s living costs when you do not live with the child. It is made when you either separate from that parent or if you have not been in a relationship with that parent. You should pay child maintenance if your child is under 16, or under 20 but in full-time education. It is important to note that parents are still responsible for the costs of raising their children, even on occasions when they do not see them.

Arrangements for child maintenance can be made privately between parties (if parties agree) or through the Child Maintenance Service. The Child Maintenance Service has a very user-friendly website which can be found using the following link:

Child Maintenance Calculator

On this website, you can find a child maintenance calculator that will work out an estimate of how much maintenance you should pay. If you are sharing care equally with the other parent, a full-time student with no income, or in prison you do not have to pay through the Child Maintenance Service.

However, if the paying parent’s gross weekly income is more than £3000, the receiving parent can apply to the courts for extra child maintenance.

Do You Meet the Conditions to Apply to the Court for Top-Up Child Maintenance?

The following conditions should be met for the court to order top-up for aliment:

  • There has to be a maintenance calculation in force
  • The non-resident parent’s weekly gross income must exceed £3,000 gross
  • The circumstances of the case make it appropriate for the non-resident parent to make periodical payments under court order as well as the existing maintenance

    An order for top-up is effectively only that. It does not replace the CMS calculation. When considering making an application, it would be sensible to work out the value of the claim, consider prospects of success, and weigh this up against the potential cost of the application.

    A schedule of costs for the child or children should be prepared with a breakdown of all costs relating to the child. This schedule will be scrutinised by the other party and it is important that there is full vouching for all costs. In S v M, in Paisley Sheriff Court, the Defender made criticism of the Pursuer’s Schedule of Costs. Some of which were accepted by the Sheriff and resulted in the award being less than what was sought.

    The court will have regard to:

    • The needs and resources of Parties
    • The earning capacity of Parties
    • Any and all circumstances of the case

      The applicant will provide details of their own resources. This could include heritable properties or recent bank statements. They should also demonstrate their own contribution toward the children’s costs and to what extent they are prejudiced financially by the level of child maintenance payments under the CMS calculations.

      When defending the application the paying party will produce details of their financial circumstances. One thing to note is that top-up aliment will not be awarded only because the payer has a higher income. There must be a demonstrable need for the top-up.

      Understanding What Happens at a Court Action for Child Maintenance

      The court will consider the needs of the children, and it will consider foreseeable needs. When assessing foreseeable needs it will consider what a party may need based on probable scenarios. It will include essential costs of food, accommodation, or clothing but also non-essential costs such as holidays. The test for assessing ‘need’ requires a subjective test. If there is substantial wealth the court is required to look at what is reasonable based on the life the parties are accustomed to. The court’s decision will also consider foreseeable resources. This may be an important consideration for someone who is perhaps due a large work bonus as this will be taken into account.

      There is little certainty as to what would happen in a court action as there is no maximum award for the court to grant. The cost of court is a factor to consider prior to raising proceedings and there is also a requirement for vouching of financials. With this in mind, the preferable position is for parties to come to an agreement, avoiding the requirement for court. However, if you find yourself in a position where a court action has been raised or you wish to raise proceedings for extra child maintenance, our experienced family team can assist with such actions.

      Contact Our Family Department

      If you have any questions regarding child maintenance or any other issue relating to family law matters please contact us.

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