Divorce is mostly the decision of one partner. Sometimes, it could be a mutual decision between both partners. However, divorce does not automatically end the responsibility that comes with being a parent.
There are several students in higher institutions across the UK, many of whom are mainly dependent on their parents for finances during their degree course.
However, the case is different when a child’s parents are divorced. The question as to “who will pay for the child’s higher education and maintenance?” and “when will it stop?” arises.
Why is child maintenance payments put in place?
Child maintenance payments are usually put in place to ensure that both parents are putting hands on deck to support their child’s upbringing and well-being.
This may be agreed on privately between the parents. However, most often than not, it is computed by the Child Maintenance Service (CMS). If you apply for any benefits, you may find that a claim is automatically made with CMS to obtain payment from the other parent.
The non-resident parent will have to pay a specific percentage of their monthly earnings to the resident parent since he/she is saddled with the responsibility for the child’s daily care and welfare.
However, the case is different when there is joint residency. If the non-resident parents also look after the child for a number of days each week, this will reduce the payments.
If the child stays overnight with the non-resident parent regularly, at least one night a week, this will be regarded as shared care.
In this case, maintenance can be lessened, as long as the basic rate is used. For each night, the child stays with the non-resident parent overnight; the weekly maintenance amount is reduced by 1/7th.
What triggers the payment of child maintenance?
1. The payment process is usually triggered by the parent who has the child in his/her custody. The resident parent usually seeks child maintenance from the other parent (non- resident parent). The maintenance contracts become effective and binding from the moment when the non- resident parent is contacted.
If the Child Maintenance Service notices that the non-resident parent has been ignoring all forms of contact, then the exact day of the contact is referred to as the day the maintenance becomes binding.
Sometimes, the non- resident partner makes the application to the CMS for best-known reasons. For this situation, the clock starts ticking from when the application is made. Fixing the date when the child maintenance payment starts to run is automatic and cannot be altered.
2. The court is eligible to fix the start date for the maintenance payments. This is possible in a case where the application is made to the court, instead of the child maintenance services.
Usually, the commencement date is the day when the court makes its order. However, the court can decide to backdate the payments. It can be shifted to any time, as early as the date of the application.
There are exceptions to the rules. For instance, if the court is making an order following the end of a CMS nomination, it can be backdated for even longer – up to 6 months.
3. In some cases where there is an order in place by the court and any of the parties is permitted to make an application to the CMS and does so, it knocks out the court order precisely two months, two days after the application is made.
4. There is an exception where the court is making an order that varies from an earlier court order. The court has permission to backdate the payments to particular date the court considers suitable.
When does the CMS power become binding?
The child maintenance service payment will become binding when some factors are met. These factors are:
- Geographical location
The resident parent with the child must not be based outside of the United Kingdom. Also, the non-resident parent must reside in the UK.
- Level and age
Extensively, the CMS is binding until the last day of August in the year that the child finishes their A-levels.
- Parenthood
Only a person who is the parent of the child, according to the law, can apply for CMS. Therefore, adoptive or step-parents have no right to file for it.
- Separation
CMS can only receive an application for provision if the parties are already separated. Although courts can make orders awaiting the separation of the partners, it cannot be binding.
- Care
The Child Support Maintenance Calculation Regulations 2012 formulated a new exclusion under regulation 50, which implies that the application can only be made if one parent gives lesser care than the other parent. However, if both parties are providing equal care, the CMS will be unable to make an order.
Your fundamental responsibility to your children
Every parent has a primary responsibility towards their children; either they are still married or divorced. Parents have a fundamental obligation to provide for their kids up until the age of 16. After this age, it now depends on what the child decides to do.
If your child proceeds with a full-time non-advanced education, which is not higher than A-level equivalent, for at least 12 hours a week, then your maintenance payments will go on until your child finishes or until they turn 20.
In 2013, the law was changed, making it mandatory for all UK children to further their education until the age of 18. This may not necessarily be a full-time college course. It may be an internship or full-time job that includes some education or training.
However, CMS payment will stop if your child changes his/her mind and decides to get a job instead of continuing a full-time education, which includes studying for 12 hours or more a week. Then your payments would end in August after his/her final school term.
You can still decide to continue supporting your child even if their education has officially come to an end.
When does child maintenance stop?
If child maintenance has been paid under a Child Maintenance Service Agreement, then the law states that maintenance will be paid until:
- The child is 16 years old.
- The child is 20 years old if they continue in full-time education to the end of A- levels. This implies that child maintenance ends once the child finishes their A-level.
Nevertheless, it is a cliché that children’s maintenance ceases without exception when they leave school after A-levels.
The order can continue if the non-resident parent is unwilling to proceed with the financial assistance through a voluntary agreement. It is possible to apply to the court for a maintenance order. This can cover the child’s time in higher institutions.
However, for this to be binding, you will need to apply before the child turns 18. If you have an existing order in place, you must apply to the court before the terms and conditions of that order expire.
Other cases where child maintenance cease
- If the child relocates from the UK.
- If the non-resident parent vacates the UK (except if there are extended jurisdiction rules).
- Adoption of the child.
- If both parents start cohabiting.
- When the parents equally care for the child.
- Through an application, which can be drafted anytime to put a halt to CMS implementation. Nonetheless, it is subject to some exceptions.
- Court order. The maintenance payment will be annulled immediately after the passing of the person liable to make the payment.
What about higher education?
Some parents may have reached a consensus on a divorce settlement. This entails provisions for child maintenance that covers the university fee.
However, not all of the parents know about this as the agreement carries a clause which specifies that support continues “to the age of 18 or full-time tertiary education, whichever shall be the last to occur.”
When a court makes a financial order when a child is still relatively young, it is very hard to make higher education provision because it is not verified whether the child will further their study.
Hence, many orders will contain a phrase such as “to the age of 18 or until the child finishes full-time tertiary education, whichever shall be the last to occur.”
The question, however, is “what is full-time education?” There is no definite answer, as many university courses use less than 21 hours a week for structured learning. It will be great to check the phrasing of the order if the child is approaching the age of 17 or he/she already speculates about going to the University.
You can also apply to the court for maintenance from the non-resident parent if your child chooses to attend University. The court has the power to lengthen the child maintenance to cover the period of higher education. This is done if the non-resident parent can cover the costs to be incurred.
The court will evaluate the profound needs of the child for support. Although the student loans may be available, the court might still rule that the other parent must pay.
Can I reach an agreement with my ex-partner about university education without going to court?
The child maintenance endpoint is the age of 18 or when the child finishes their A-levels. Nonetheless, even though there is an agreement that financial support stops later, this does not cover university education.
During divorce proceedings and financial agreements, many parents always make provision for their child’s education up to the university level.
Any agreement made on this basis mostly specifies that there will be a termination of payment after the first-degree course. This implies that financial support does not extend to other postgraduate degrees.
It is common for any payments to be made directly to the older child rather than to the resident parent.
However, there is an exception when the older child continues to live at home even while at the University. Hence, the parent who has always received child maintenance in the past can continue to receive the payments.
What if I want to continue support?
There is no restriction on a non- resident party if they want to continue supporting their children. At this point, the amount to be paid and the duration is solely determined by you.
Also, you will no longer have to pay the money to your ex-spouse. You can also consider helping your child in various ways that are comfortable for you.
Even after they finish school, it is lovely to be supportive and helpful, both financially and emotionally, as they navigate life.
Action Plan
Are you burdened with the responsibility of sponsoring your children through school alone? Would you love your partner to help you alleviate the financial burden? Contact one of our experienced family law solicitors for expert legal advice.
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