In the event of a dispute about how much one party should pay the other in child maintenance, the court generally has no ability to make orders for child maintenance.
Whilst the court can approve an agreement or order reached by consensus, if there is a dispute one party would generally have to make an application to the Government’s Child Maintenance Service (CMS) for a child support assessment.
The formula for assessing child maintenance is fixed and prescriptive. It does not take into consideration any additional cost that one parent may have to bear e.g. loans, extra curricular activities, school trips or child care.
In some exceptional cases where parties are have a large income the court can make an order. In addition, orders can be sought to pay school fees and in cases where parties cohabit financial provision orders can be made.
In cases where one party to a marriage is earning considerably more than the other, consideration needs to be given as to whether the person with the greater income should pay the other party a percentage of their income to address this disparity. Whilst there is no automatic entitlement to share income equally, maintenance can be paid to meet the other party’s “reasonable requirements”.
The parties don’t need to have children for the court to order a spousal maintenance order. However, when children are involved the court needs to consider how much the paying party would be required to pay in child maintenance.
Maintenance is based on each individual case and the court would have to consider:
- The ages of the parties
- The ages of the children
- The length of the marriage
- The ability of both parties to earn income.
For example, in a case where the parties have young children which makes it difficult for the main carer to work, or if one person needs a short time to improve or update their skills, the court may order maintenance until that party has had the necessary time required to get back on their feet and retrain or update their skills.
In other cases, where the marriage spanned a lengthy period and one party may never have worked, the court may make a joint lives order, which means the payer continues to pay maintenance until there is a further court order, or until they die or the receiving spouse remarries.
In some cases, for example where the children’s main carer has only just started working, there may be a nominal maintenance order of a few pence a year so, that if they lose their job, they can make an application to the court to increase the payment. The nominal maintenance order therefore acts like a safety net.
Sometimes a party may be entitled to spousal maintenance but may prefer more capital instead. The payer may also prefer to give their spouse additional capital rather than having to pay regular maintenance, which also reduces the risk of the other party being able to increase those maintenance payments. This is called capitalisation of maintenance.
If you would like free, no obligation advice regarding maintenance, please complete the accompanying form or call us on 0114 3992355 to arrange a 30 minute consultation.
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