Child Maintenance on Divorce
Heidi Fleming

Child Maintenance on Divorce

Parents often decide the arrangements for child maintenance payments between themselves, with payment usually made on a monthly basis. Alternatively, if this is not possible, they can apply to the Child Maintenance Service (CMS and for those of you old enough this is formerly the CSA) or obtain a court order. Even with a court order in place, after 12 months from the date of the order, either parent can make an application to the CMS.

I often have clients say to me, “well, I don’t want child maintenance from him if I can pay him less to keep the family home” or “She can have more money now if she he doesn’t pursue me for child maintenance”.

So can you just not pay child maintenance?

You have a legal financial obligation to provide for your children that goes without saying, but can you within financial settlement on divorce agree something different?

If you’re the wife caring for the children, can you receive extra capital now instead of child maintenance because you want to keep the house and have an outright transfer of the family home to you?

If you’re the husband and you have a Mesher order where you won’t get access to your share of the house until the youngest child is 18, would you rather your wife buy you out now, release you from your obligations under the mortgage so you can purchase a new property now?

Please remember, the above are just examples and are in no way representative of what may be fair in your case. Always seek advice on settlement from a family law specialist.

The short answer is yes but consideration needs to be given as to what happens after a year. As mentioned above, after a year either parent can go to the CMS, ask for a calculation and claim child maintenance.

The problem

So you have agreed no claim will be made for child maintenance and your ex-spouse is to receive more capital as a result now what? What can you do to protect yourself?

Well firstly you need a court order reflecting the financial agreement within divorce proceedings. The order should be drafted to say that neither of you will go to the CMS. But what happens if someone does make the claim to the CMS what then?

Well this is problematic as the CMS are not going to be bound by the court order. They will make the spouse who has relied on the promise and given away more assets than is fair pay child maintenance. This is fine if you are the recipient because you benefit by applying for CMS, not so great for the payer of CMS.

The indemnity clause – Avon case - protection for the payer of Child Maintenance

Last year in the case Ipekci v McConnell [2019] EWHC 19 the court made an order dealing with the risk that the wife could apply to the CMS and undermine the intention of the order. This was a case involving the great granddaughter of the Avon Empire who married a hotel Concierge. A pre-nuptial agreement wasn’t upheld and the husband was awarded a lump sum of £1,333,500 of which £375,000 was subject to the charge-back to the Wife. On payment in full there was to be a clean break. The order was made on the basis that the wife would not pursue the husband for child support under the Child Support Act 1991.

The court awarded an indemnity in the husband's favour in the event that the wife should make an application to the CMS. This meant that if the wife made an application to the CMS she would have to pay her husband back for any amounts she tried to claim.

How we can help

If you are experiencing difficulty with agreeing child maintenance payments get in touch with our Family Lawyers on 0330 0945 500, email or complete our Contact Form and we'll get back to you.