Child Maintenance Agreement

What is a child maintenance agreement?

A child maintenance agreement can be used by two parents in England and Wales who are separating or have separated. The purpose of the agreement is to record how much one parent will pay to the other parent to cover the costs involved in a child's upbringing.

What are the different types of child maintenance agreements?

It is possible for parents to make a:

• family-based arrangement – this is a simple written statement which sets out an informal agreement about the payment of maintenance
• a formal deed of agreement– this is a separation contract which is intended to be legally binding by the parties

What is the most common type of child maintenance agreement?

Many parents record their agreement about maintenance through a family-based arrangement. If the parties disagree in the future, they still have the option of applying to the Child Maintenance Service.

What is the difference between a child maintenance agreement and a child arrangement separation agreement?

A child arrangements separation agreement is primarily used to define the living arrangements for the child or children, and the time (contact) they will spend with the non-resident parent.

A child maintenance agreement will set out any agreement reached in relation to the financial arrangements for the children. Typically, this will specify the financial contributions made by the non-resident parent.

Is it mandatory to have a child maintenance agreement?

No. It is not mandatory to have a child maintenance agreement.

If the parties can agree on the payment of child maintenance, then they may decide that it is not necessary to put this in writing.

A parent can also apply to the Child Maintenance Service (CMS) for child maintenance payments in relation to another parent. The CMS is a government body which is responsible for:

• calculating how much maintenance the non-resident parent should pay to the resident parent
• collecting payments from the non-resident parent
• issuing payments to the resident parent
• taking enforcement action where payments are unpaid.

The highest amount of a non-resident parent's gross weekly income which the CMS will take into account is £3,000, so a written agreement or a court order can be helpful where the non-resident party earns over this amount.

What is a 'resident' and 'non-resident' parent?

A resident parent is the term used to describe the parent with whom a child lives for most of the time.

A non-resident parent is a term used to describe the parent with whom a child does not live. A child may spend time with their non-resident parent (this is called 'contact' time).

What does 'Parental Responsibility' mean?

Parental Responsibility is the legal term for the rights and responsibilities held by a parent or legal guardian of a child. A person might automatically hold Parental Responsibility, or they might acquire it via a legal process (such as a legal agreement or a court order).

What are the prerequisites of a child maintenance agreement?

The parties will need to agree on the amount of maintenance which will be paid under the agreement. The Parties can make use of the Child Maintenance Service calculator, which provides a general idea of what periodical payments the non-resident parent should pay.

Using the CMS calculator is an informal process and does not amount to a formal CMS application, meaning that the parties can keep matters within their private agreement.

Where the parties have elected to make a formal deed of agreement, they must:

• ensure that they have shared comprehensive details of their financial circumstances* with each other
• have sufficient time to read and consider all the financial information and the draft copies of the agreement
• both receive independent legal advice (the certificate of proof will then be attached to the agreement)

The suggested method of sharing financial information is by attaching to the agreement a completed Form E (where the parties were or have been married/civil partners) or Form E1 for all other cases.

Who can enter into a child maintenance agreement?

Any parents who are separating or have separated may enter into a child maintenance agreement. This might include parents who are or have been married, civil partners or cohabiting. A party should be of sound mind when they make the agreement.

What can be the duration of a child maintenance agreement?

A child maintenance agreement can remain in place until a child reaches the age of 18 or until they finish full-time education, whichever is the latest.

The parties can however review and update the agreement regularly. The agreement will specify the agreed period for review.

What should be done once a child maintenance agreement is ready?

Each party should retain copies of the signed agreement. The parties can make a mutual court application to make a family-based simple agreement into a binding consent order in the future, or they can simply refer to the agreement.

What documents should be attached to a child maintenance agreement?

If the parties have a child arrangements order in place, they may wish to attach this to the agreement for reference (to show where the children live and how they spend time with the other parent).

If the parties are executing the agreement as a formal deed of agreement, they should:

• attach details of their financial resources using a financial statement (Form E or E1)
• include a certificate of legal advice

Is it necessary to register a child maintenance agreement?

It is not a requirement to register a child maintenance agreement. If the parties are in dispute about child maintenance, they have the option of contacting the Child Maintenance Service.

The parties can also make a request to formalise an informal written agreement, by making an application to the Court for a court order.

Is it necessary to have witnesses for a child maintenance agreement?

The parties can:

• make a family-based arrangement – this is a simple written maintenance agreement which sets out an informal agreement about the payment of maintenance. The signatures to this type of agreement do not need to be witnessed
• make an agreement reached by deed – this is a separation contract which is intended to be legally binding by the parties. The parties must have their signatures witnessed as the document will take the form of a deed. A witness should be over the age of 18, of found mind and should not be a party to the agreement.

The document will not be reviewed by a lawyer to ensure that the legal content applies to the personal situation of the parties. In order to review the particulars of any final agreement, it will be necessary to instruct a lawyer. For assistance finalising, reviewing and executing a deed, advice should be sought from a lawyer who is regulated by an approved regulator in the legal services sector. It is possible to search for a lawyer using the Law Society – find a solicitor webpage.

What are the costs involved in finalising a child maintenance agreement

If the parties choose to make the agreement as a deed, they will need to seek legal advice. The legal advisor will advise of their costs in advance.

If the parties would like to make an application to the Court for a child maintenance agreement to be converted into a legally binding court order, there will be a court fee involved.

Is a child maintenance agreement legally binding?

A maintenance agreement is not strictly legally binding unless it is executed via deed. If a child maintenance agreement is executed as a deed and is not adhered to, the 'innocent' party may choose to apply to the civil court for a contractual remedy. Making this type of court application may be time-consuming and costly.

Where the parties are in disagreement about the payment of child maintenance, they can usually apply to the Child Maintenance Service or the Family Court for a court order.

Why is the payment of child maintenance important?

By law, a parent has a duty to maintain their child. This is the case for all legal parents, regardless of whether they hold Parental Responsibility. It is therefore really important for parents to make proper arrangements for the payment of child support when they separate.

What must a child maintenance agreement contain?

A child maintenance agreement should contain the following key information:

• the details of the relevant parties – the parents and the child
• the agreement regarding periodical payments – payments that will be paid regularly for the child's benefit
• any educational costs - contributions towards school fees and educational expenses
• how and when the agreement will be updated and reviewed

Which laws apply to a child maintenance agreement?

The following key legal provisions are relevant to the issue of child maintenance:

• The Child Support Act 1991
• The Matrimonial Causes Act 1973
• The Civil Partnership Act 2004
• The Children Act 1989
• The Law of Property (Miscellaneous Provisions) Act 1989 (in relation to the execution of deeds)

Help from a lawyer

You can choose to consult a lawyer if you need help.

The lawyer can answer your questions or help you through the process. You will be offered this option when you complete the document.

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