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This document can be used to create a written child maintenance agreement in England and Wales. The document can be used by two parents who are separating or who have separated. This includes those parents who are or have been: married; civil partners, cohabiting, or who have simply been in a relationship together.
Broadly, this document can be used to record how much child maintenance one parent (known as the 'non-resident' parent) will pay to the parent who the child or children live with (known as the 'resident parent'). Where the parties wish to make detailed provisions about the division of all their assets during a divorce, dissolution or after the termination of cohabitation, the parties should make use of full a financial separation agreement to cover all those factors. Where the parties wish to set out details regarding the living and contact arrangements for the children, they could consider drawing up a child arrangement written agreement in addition to this agreement.
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. Maintenance can take the form of:
The Child Maintenance Service
In most circumstances, where the parties are unable to reach an agreement regarding child maintenance, the appropriate recourse is for the resident parent to apply to the Child Maintenance Service (CMS). The CMS is a government body which is responsible for:
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 could be particularly useful where the non-resident party earns over this amount.
Making a simple written maintenance agreement (family-based arrangement)
In most circumstances, where things can be agreed upon, it is sufficient for the parties to write down what they have agreed in a simple signed written agreement. This is often called a 'family-based arrangement'. The agreement is not a formal binding contract, but the document sets out in clear terms what the non-resident parent should pay to the resident parent. The statement can evidence the commitment of both parties to the maintenance of the child or children of the relationship during and after separation.
This form of a (family-based) written agreement cannot prohibit either party from applying to the CMS for a different calculation/ruling in respect of child maintenance periodical payments. However there is no need for the parties to apply to the CMS where they are agreed, and a written agreement saves the parties from paying any CMS fees. The agreement can easily be changed and updated through agreement at any time, to reflect the parties' up-to-date circumstances.
Furthermore, the law (section 8 (5) of the Child Support Act) says that the parties can make an application to the Family Court for a written agreement about periodical payments, and in doing so they can request for this agreement to be made into a legally binding consent order. The Parties to this agreement may elect to do this after they have completed their written agreement. For example, the Parties may wish to do this where the figure they have agreed on is above the CMS's maximum threshold.
Making a written agreement by deed
Where the parties to a child maintenance agreement wish to make this a legally binding separation contract, the agreement takes a more complex form. The agreement must be executed and formalised in a particular manner, following some particular steps. This includes:
Where the above steps are taken, the Court is more likely to consider that the maintenance agreement has been agreed upon by both parties in a fair, informed and enforceable manner.
It is important to remember that, in most cases, it is sufficient for the Parties to simply agree on the maintenance figure in writing (in the manner described above) and in using that method they shall always have the option to ask the CMS to assume responsibility for the enforcement of periodical payments or to refer the matter to the Court for an agreed consent order. The parties shall not have the option of cancelling their obligations under the deed by making an application to the CMS in the same way. Furthermore, the parties may consider that obtaining legal advice, providing financial information and any future methods of enforcement are costly and time-consuming processes.
Some key reasons the parties may wish to elect to execute the document formally could include:
How to use this document
In all circumstances, the parties should start by working out the relevant maintenance figures which shall be paid under the agreement. The Parties can make use of the CMS 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.
The parties can then discuss and agree on any factors they wish to account for in addition to periodical payments (such as the payment of school fees, or other unique additional payments for things like school trips). These can also be included within the agreement.
Where the parties are signing the agreement as a simple family-based arrangement, they can input the relevant information. The parties should then both sign and date the agreement. Both Parties should retain copies. Where there is any disagreement in the future, the matter can be referred to the CMS.
The parties may choose to make a mutual court application to make the agreement payments into a court order (a consent order). Where an application is made for periodical payments only, this can be done using form A1. For periodical payments and other types of orders (such as school fee payments), this is done by using a Form A. The parties will also be required to complete a statement of information (Form D81).
Where the parties have elected to make a formal deed of agreement, they must:
(1) ensure that they have shared comprehensive details of their financial circumstances with each other. The suggested method of doing this is to attach to the agreement section 2 of a Form E (where the parties were or have been married/civil partners), or Form E1 for all other cases; and
(2) have sufficient time to read and consider all the financial information and the draft copies of the agreement; and
(3) both receive independent legal advice (the certificate of proof will then be attached to the agreement).
(4) sign the agreement as a deed in the presence of a witness.
Both parties will then retain a copy of the deed. Where the agreement is not adhered to, the 'innocent' party may choose to apply to the civil court for a contractual remedy (which may be time-consuming and costly), or to the Family Court for a financial order using a Form A or Form A1 and D81 as described above.
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)
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