Where children stay overnight with a non resident parent (normally the father) this can result in a reduction in child maintenance.
The Child Support Agency, now called the Child Maintenance Service (CMS), calculate that for each full overnight stay per week on average, there should be a reduction of one seventh. For example, if a father has overnight contact 110 days per year, there should be a reduction of two sevenths of the maintenance award.
However, what is the position where there is an equal split of the shared care between the parents? In the past, a parent receiving the child benefit has still been able to claim maintenance from the other party. When the shared care has been equal, there would be a discount of three sevenths of the maintenance award. However, there has been a change in the rules with the Child Support Agency (CSA) which is not well known.
Regulation 50(2) of the Child Support Maintenance Calculation Regulations 2012 now mean that if the paying parent can satisfy the Child Maintenance Service that there is equal shared care, then there would be no requirement for either parent to pay maintenance. This is suitable in circumstances when both parents share overnight contact almost equally plus have an equal day-to-day care of the child too. Therefore, in such situations, even if the mother has the child benefit the father should be able to rely on regulation 50(2).
There is a potential that knowing of this regulation, fathers could deliberately try to obtain an increase in the time they spend with their children to avoid having to pay maintenance to the mother. This could also result in more Court applications, where the parties are not able to agree to the increased time spent by the children with their father. It is useful to remember that if the Child Support Agency accept that there is a case for there to be no maintenance payable the CSA will decline jurisdiction. It may then still be open for the mother to apply to make an application to the Family Court for maintenance. Once jurisdiction is declined by the CSA, this opens the door to a claim to the Family Court for a maintenance order for the child.
However, the potential legal costs involved in the mother making such an application would be a significant deterrent. On a practical note, it is not anticipated that there would be many such applications before the Court.
For advice on Divorce and Family Law, please contact our specialist family law team on 0113 320 5000 or by email@email.
