Q&As

Where the parties have reached an agreement regarding child maintenance and wish an order to be by consent made reflecting that agreement, will a maximum Child Maintenance Service (CMS) calculation be required for the court to make a top-up order? Where the paying party’s income is such that it would result in a maximum CMS calculation, if one were made, will the consent order need to include a separate order as to child maintenance plus a top-up order as security?

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Published on LexisPSL on 03/12/2019

The following Family Q&A provides comprehensive and up to date legal information covering:

  • Where the parties have reached an agreement regarding child maintenance and wish an order to be by consent made reflecting that agreement, will a maximum Child Maintenance Service (CMS) calculation be required for the court to make a top-up order? Where the paying party’s income is such that it would result in a maximum CMS calculation, if one were made, will the consent order need to include a separate order as to child maintenance plus a top-up order as security?

The court will not have jurisdiction in relation to child maintenance unless section 8 of the Child Support Act 1991 (CSA 1991) applies. An application can only be made to the court for a ‘top-up’ maintenance order where a maintenance calculation has been undertaken by the Child Maintenance Service (CMS), and the non-resident parent’s (NRP) gross income exceeds £3,000 per week, where the formula introduced by the Child Maintenance and Other Payments Act 2008 applies. CSA 1991, s 8(6) specifically refers to a maintenance calculation being in force, ie (emphasis added):

(6) This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

(a) a maintenance assessment [maintenance calculation] is in force with respect to the child;

(b) the amount of the child support maintenance payable in accordance with the assessment [calculation] was determined by reference to the alternative formula mentioned in paragraph 4(3) of Schedule 1; and

[(b) the non-resident parent’s [gross] weekly income exceeds the figure referred to in paragraph 10(3)

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