If child maintenance forms part of a Court Order, the rules for seeking amendments vary depending on when the Order was sealed by the Court and the clauses contained within it. Factors like the date, special clauses and the possibility of enforcement need to be considered.
If the Court Order was made in England and Wales between 5th April 1993 and 6th April 2002 (and the receiving parent is not in receipt of income support) the Order can only be varied through the Court.
If an Order was made after 6th April 2002 and has passed its first anniversary, the child maintenance element can be transferred to the CMS for assessment.
If an Order is less than one year old, the child maintenance clause cannot be transferred to CMS and payments must continue until the first anniversary of the Order, unless and your child’s other parent agrees to a change. In some circumstances, you can apply to the Court to vary the Order before the first anniversary. A family solicitor can advise you on your chances of success.
If you need to make a change, we recommend that you first contact the receiving parent to explain the situation. If that is not possible, or the desired progress is not made, a mediator or family solicitor could aid the negotiation process. We strongly recommend that any negotiation achieved should be recorded in writing, ideally in the form of a Consent Order and lodged with the Court.
In matters where negotiation is unsuccessful, it would be appropriate to ask the Court to review the Order, to decide if child maintenance should be varied.
If you qualify to transfer child maintenance to CMS, you will need to pay a fee and provide full details of all parties for them to make an assessment. Once this happens the child maintenance clause in your Court Order becomes null and void and you will become liable to pay the amount determined by the CMS.
When making their calculation the CMS will consider how much you earn, how many nights a week the child spends with you and whether you have other children who are dependent on you.
It is important to note, that the CMS calculates child maintenance based on your income for the previous tax year, meaning your liability could be increased or decreased when compared to your original Court Order. However, a recalculation is possible if your (the paying parent’s) income has changed by 25% since the last tax year or if you are now in receipt of benefits.
Some Orders contain special clauses such as contractual agreements and ‘Christmas Orders’. Contractual arrangements can be stand alone or in addition to a Court Order. Where a parent has signed a contract to make maintenance payments, then varying payments would be breaching the contract. As changes to payments can result in serious repercussions, including being ordered to pay damages, judgement summons and potentially even bankruptcy, it is essential to seek legal advice.
Some orders contain what is known as a ‘Christmas Order’. This means that the child maintenance element of the Order renews annually and is therefore never over 12 months old. This means you cannot transfer the matter to the CMS. Any change to this Order would need to be by agreement of both parties and recorded in a further Consent Order or by application to the Court.
Court Orders made in the jurisdiction of England and Wales (while the paying party resides there) could be subject to an Enforcement Order. Therefore, we strongly recommend taking take legal advice before making unilateral changes to Court Ordered child maintenance payments.
A Judge hearing such matters has a wide range of enforcement actions available to them including:
As the repercussions are so serious and can have long term effects on your financial situation, it is important to take advice from a specialist at the earliest opportunity.
Where there is a Court Order in place for child maintenance it is important to obtain advice before varying payments.
If you would like to speak to a family solicitor about the specifics of your situation, you can call 020 7993 2936 to book a consultation or complete a Contact Request.
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