The Child Maintenance Service (CMS), as it is now known, is very often used to assess how much the ‘non-resident’ parent should be paying in child maintenance. However, with married couples where they enter into a financial consent order within divorce proceedings it is often the case that the child maintenance payable will go into that court order.
There are a number of reasons for this, one reason for example is it provides the payee with evidence to supply to a mortgage company to increase their mortgage capacity based on their income from all sources.
This guarantee is only present for a period of one year. After that date then as long as the order was made after 3rd March 2003 either party can refer to the CMS for assessment of the payer. The referral then and only then makes the child maintenance clause of the consent order null and void and all child maintenance payable after that date will be through assessment by the CMS.
However it must be remembered that formal referral to the CMS must be made in order for the child maintenance clause of any consent order to become void, otherwise the payer is at risk of being sought for arrears. For example an ex-husband is ordered to pay child maintenance at the rate of 750.00 per month but loses his job gaining another one that pays significantly less and on that basis he begins paying the ex-wife maintenance of 500.00 per month. The ex-husband has entered his new details onto the CMS online calculator and entered all the correct information and this is the genuine amount he should be paying through the CMS.
BUT because he has not self-referred to the CMS (which costs just 20.00 for assessment) his liability under the consent order continues and 5 years later the ex-Wife seeks arrears of 15,000.00 plus interest.
This is not to say the ex-wife would be successful as the ex-wife would need the court’s permission to apply for arrears over 12 months old and indeed she would come under heavy scrutiny as to why she did not apply earlier but there is a risk that the court could make an order for such a lump sum to be paid. The ex-husband would also go to the expense of incurring solicitors fees in seeking advice and defending such an application even if he were successful on defending arrears over 12 months.
Knowledge is power and therefore if you do intend to change the arrangements of a court order made within your divorce proceedings seek tailored expert independent legal advice to make sure that you are crossing all the t’s and dotting all the i’s to ensure that you don’t suddenly end up with a court application for enforcement for thousands of pounds on your door mat.