Child maintenance can be a contentious issue between separated parents. Following separation, the stability and security of any children of the relationship or marriage is very important. A key factor in providing such stability is by the payment of child maintenance from one parent to another. Under the Children (Scotland) Act 1995, a parent of a child who has parental rights and responsibilities has a legal obligation to maintain a child financially.
What is child maintenance?
Child maintenance is the term given to describe a financial obligation owed from one parent to the other parent in order to assist with paying for a child’s day to day living costs, such as food and clothing. Child maintenance is generally paid to the parent who has the main responsibility for the day-to-day care of the children.
How much child maintenance do I have to pay?
Child maintenance is regulated by the Government body known as the Child Maintenance Service (CMS). The UK Government provides a useful guide to making a child maintenance arrangement. This guide includes an online calculator that parents can use to reach an agreement and determine for themselves the level of child maintenance that should be paid.
The amount of child maintenance payable is mainly determined by:
- the number of nights per year that a parent has the child in their care, and
- the extent of their gross earnings.
In situations where parents are operating a shared care arrangement, no child maintenance would be due to or by either parent.
Parents often think that financial support of children stops at the age of 16. However, if the child is in full time education or if child benefit is payable in respect of the child, the CMS continue to have jurisdiction until the child is age 20.
Who decides if child maintenance is payable?
Separated parents are free to agree between themselves:
- whether one parent should pay child maintenance,
- the amount that should be paid, and
- for what length of time the payments should be made, for example, until the child finishes higher education.
If an agreement can be achieved between parents they can enter into a written Separation Agreement. Such an Agreement can also deal with other issues arising from the separation. It is important that Separation Agreements are drawn up by a solicitor.
What if the level of child maintenance payable cannot be agreed?
As long as the CMS have jurisdiction, either parent can make an application to the CMS if they have been unable to agree the amount that should be paid. The CMS will then decide the rate of maintenance payable. The CMS will charge a £20 application fee. Once the rate of maintenance has been established by the CMS, parents themselves can arrange the method of payment.
If parents cannot agree the method of payment, the CMS offer a collect and pay service. For this service the CMS charge an additional 20% to the paying parent and deduct 4% from the amount the receiving parent is due to receive. So, both parents will lose out. The Government is keen for parents to reach agreement between themselves and these charges are there to encourage that.
What happens if the paying parent refuses to pay?
The action open to you depends on what kind of arrangement you have place with your former partner or spouse.
- If you have an informal agreement, your only option is to ask the CMS to contact your former partner or spouse.
- If you have a Separation Agreement or a Minute of Agreement which first is registered in the Books of Council and Session, and secondly provides that your former spouse or partner should be paying child maintenance, then you should instruct a solicitor to serve an earnings arrestment on your former spouse or partner. You do not need to approach the CMS in this situation.
- If you have applied to the CMS and the paying parent fails to pay, you must tell the CMS that payments have stopped. The CMS have powers to arrest wages, take money directly from a bank account, force the sale of property or belongings and even the power of imprisonment in more extreme cases of non-payment. The parent that is due child maintenance may also need to pay for any action the CMS has to take.
Seek early advice
The issue of child maintenance can result in tension between parents, and could affect future discussion around contact arrangements for children and other financial matters that need to be resolved. We would recommend obtaining legal advice at an early stage. This will help avoid any uncertainty and provide both parents with reassurance that their children will be financially stable.
The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.