Making child maintenance work when costs are rising

Much of the media’s attention has been focused on the costs of living crisis, with the very real impact of the increase in energy costs, and grocery bills, dominating discussions in the media and in government.  Families are experiencing an increase in household expenditure outside of their control, at a time when their household income cannot keep pace.  The impact can be stark on separated parents who are reliant on the support of their former partner to meet any shortfall in their children’s income.

Presently, the options available to a separated parent are still informed by whether or not they were married to their former partner.

Court orders

For many divorced couples, there may be a spousal maintenance order or a child maintenance order in place, which includes provision for payments to change in line with any increase in the Consumer Price Index (CPI) or Retail Price Index (RPI).  Often, the order will provide a mathematical formula which, when applied, calculates the increase in the sum to be paid, in line with any increase in living costs since the order was first made. The first practical step for any parent is to review the terms of any existing order.

If the parents were not married, but an order was made for child maintenance payments under Schedule 1 of the Children Act 1989, then there may still have been a similar provision for the indexation of payments as that detailed above.

However, unmarried parents may find that the only solution to address the question of child maintenance, and what level of payments their former partner should make, is through the Child Maintenance Service (‘CMS’). The CMS website provides invaluable guidance on how child maintenance payments can be assessed, what should be paid, and how any payments can be collected.

The level of payments

It is extremely important separated parents approach any review of child maintenance payments. with a keen eye on affordability and proportionality. In a vast majority of disputed cases, a judge will be guided by the likely CMS assessment as to the right level of child maintenance payments. Unless a paying parent earns over £156,000 gross per annum, the family court’s jurisdiction to assess the right level of child maintenance is extremely limited.

Separated parents need to have a keen eye on where economies can be made; whether some expenditure is genuinely ‘needed’ for the child; and importantly, what the paying parent can actually afford to pay. As family lawyers, the focus must be on practical ‘real world’ advice with a realistic and frank assessment and discussion of need and affordability.

Further support

It is important that those paying child maintenance, and those receiving payments, explore all the possibilities of securing financial support from their employers, and equally any support that can be provided through government schemes and benefits.  This may include contributions towards childcare costs or crèche facilities. Health and dental care plans available through employee benefit schemes should also be reviewed and explored.

Discussion time

When the costs of living are increasing at an unprecedented rate, parents will need to ask difficult questions regarding the affordability of prioritising, say, private school fees ahead of a need to meet mortgage repayments, food bills, clothes and fuel costs.

If there is a dispute over what one parent says their child needs, and what one parent says they can afford, then the Family Court system should be seen as a last resort – if the option of court proceedings is available at all. Court proceedings can be expensive and time-consuming, with parties spending money on legal costs arguably be better deployed in meeting the shortfall in their income needs for their child. Alternative methods of dispute resolution, such as mediation or negotiation, can better help separated families in dealing with the day-to-day financial pressures of meeting food bills and essential costs of living.

Conclusion

Family lawyers need to take a holistic approach by considering not just the available options through the family court, but also practical advice, such as working with financial advisers to help a parent with their budget concerns. Ultimately, both parents will need to recognise that in times of financial strain, the solutions may be far more practical in nature – and focused on frank discussion and compromise than seeking recourse through the Family Court.

Simon Donald is a partner and family lawyer at Cripps: cripps.co.uk