Should Child Maintenance be included in a financial consent order?

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Should Child Maintenance be included in a financial consent order?

I had a client this week who came to me seeking advice on a financial settlement that he and his wife were working through. It included a provision to pay £400 a month in child maintenance until 2031. Should child maintenance be included in a 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 CMS is a government body that calculates what percentage of the payer’s gross income must be paid to the children’s primary carer. This is determined using several factors. You can find a walkthrough of the calculation here.

Why would be spouse want child maintenance in the consent order?

It’s common for a spouse to push to include child maintenance in a consent order. The main reason is that people want to use it as proof of income to help them secure a mortgage or a tenancy agreement.

Do I have to use the CMS?

No, not at all. You can agree between yourselves. However, it is advisable to use the CMS 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 CMS calculator tends to reduce the potential for conflict because an impartial third party calculates the decision on the amount.

When can I claim child maintenance?

A voluntary arrangement can start straight away, but the CMS cannot calculate child maintenance if parents of the children are still living together. Also, a consent order cannot be submitted to the court until the decree nisi is in place. And the court will want to see that you are maintaining separate households before granting a Decree Nisi.

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 doesn’t seem fair to the other.

Once the CMS calculate what should be paid, this becomes the amount legally required. Even if it is a different value to the amount in the consent order.

Helpful information is available on the government website:

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