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Should child maintenance be included in a financial consent order?

This week, I had a client who came to me seeking advice on a financial settlement that he and his wife were working through. It included paying £400 a month in child maintenance until 2031. Should they include child maintenance in their consent order?

If you are getting a divorce and agree on child maintenance, you can include it as part of a consent order. However, the consent order would only make the child maintenance legally binding for 12 months. After this time, the Child Maintenance Service (CMS) takes over jurisdiction to enforce child maintenance, including calculating the amount due.

The Child Maintenance Service is a government body that calculates how much of the payer’s income must be paid to the children’s primary carer. The child maintenance service calculates this by looking at several factors. You can find a walkthrough of the calculation here.

A financial consent order makes the financial arrangements between a couple legally binding so neither party can change their mind or go back on their word (you can find out more about consent orders here). 

It’s common for a spouse to push to include child maintenance in a consent order because they want to use it as proof of income to help them secure a mortgage or a tenancy agreement.

Do I have to use the Child Maintenance Service?

No, not at all. You can agree between yourselves. However, it is advisable to use the Child Maintenance Service calculator to work out what the payments should be and make the payments directly between yourselves. This approach is the easiest way to proceed and is known as a voluntary maintenance agreement. Using the Child Maintenance Service calculator reduces the potential for conflict because an impartial third party decides how much to pay.

When can I claim child maintenance?

A voluntary arrangement can start immediately, but the CMS cannot calculate child maintenance if the parents of the children are still living together. Also, you can’t submit a consent order to the court for approval until you have the conditional order (previously known as the decree nisi) from your divorce application.

What if we can’t agree or my ex-spouse wants to change the voluntary amount of child maintenance?

Either of you can make a formal application to the CMS if you can’t agree on the amount or if either parent wants to change the amount, and it doesn’t seem fair to the other.

Once the Child Maintenance Service calculates the amount to pay, it becomes the amount legally required, even if this is a different value from the amount in the consent order.

Helpful information is available on the government website: https://www.gov.uk/making-child-maintenance-arrangement 

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