If there is a CMS assessment is it a good idea to include the amount in a consent order?

This question was asked today. Here is some information which may help you decide:

  • Agreed family based arrangements are often incorporated into consent orders because it is a written record of the agreement and is enforceable through the court system for at least a year.
  • It can be useful to have a legally binding agreement if the receiving parent is applying for a mortgage.
  • Child maintenance can only be included in a consent order when it is agreed. If there has been a CMS assessment this suggests that the amount of child support was not agreed at some point and enforcement action may be needed.
  • If there is a need to enforce child support the CMS has far reaching powers and it is probably cheaper to go down that route than through the court.
  • 12 months after a consent order has been made either parent can ask the CMS to make an assessment again.
  • A statutory CMS assessment (Direct Pay) is also legally binding and is as likely to be taken into account by some mortgage lenders as an agreed order for maintenance. The best way to find out is to ask your lender.

 

 

 

Child Maintenance and Consent Orders – the 12 month rule

I was asked a couple of weeks ago to point out where the “12 month rule” can be found in the various legislation relating to child maintenance on divorce or separation for those parents who are not married.

First of all what is the 12 month rule?

The rule is that where the court has made an order for child maintenance (which can only be made by courts now in limited circumstances) either party can opt out after 12 months.

The rule can now be found in the Child Support Act 1991. Section 4 of that Act was amended by the Child Support and Pensions Act 2000 as follows:

Applications under section 4 of the Child Support Act 1991.

(1)In section 4 of the 1991 Act (child support maintenance), subsection (10) shall be amended as follows.
(2)In paragraph (a), after “maintenance order” there shall be inserted “made before a prescribed date”.
(3)After paragraph (a), there shall be inserted—
“(aa)a maintenance order made on or after the date prescribed for the purposes of paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made; or”.

What is the prescribed date?

The “prescribed date” can be found in the “The Child Support (Applications: Prescribed Date) Regulations 2003″ and it is 3rd March 2003.

What does all that mean?

In a nutshell if your consent order contained an agreed order for child maintenance and was made before 3rd March 2003 you cannot opt out after 12 months and if your order was made after 3rd March 2003 you can.

So if you can opt out why bother with it at all?

There may be other reasons why you want an agreed maintenance order. It is important to take advice before deciding.

Points to consider may be  for example :-

  1. where one of you lives abroad or may be going to live abroad and the CSA will not have jurisdiction there; 
  2. some mortgage lenders like to see maintenance in a binding form such as a CSA assessment or a court order and you don’t want to go through the CSA process;
  3. you just want to see your agreement in writing rather than go through the CSA;
  4. you have agreed a higher amount than the CSA would prescribe and want to be sure to receive that for at least a year;
  5. you may have agreed school fees are to be paid and this is separate from normal child support and is something you need to discuss with your solicitor.

What happens when you opt out?

The CSA jurisdiction takes over from the court order and the court ordered maintenance lapses. You will pay the CSA amount from that point on whether it is higher or lower than the court ordered maintenance.

Don’t forget though that you actually have to apply to the CSA otherwise the court order remains in force.

There are ways to protect maintenance from reducing in some circumstances by using the spousal maintenance provisions if appropriate. These can be called “Segal” orders which encompass both spousal and child maintenance in one amount. Or you can just have a straightforward spousal maintenance order which can be set to automatically go up if the child maintenance goes down.

Talking to a solicitor about all these options doesn’t have to be an aggressive step. It is a fact that the various rules and laws are spread over different Acts of Parliament and Statutory Instruments and no amount of searching on wikivorce is going to be a good substitute for talking to an experienced divorce solicitor about this.

Save yourself hours of trawling through pages of misinformed forum commentary and blogs and just speak to a solicitor who can usually give you the answer to your question in a few minutes.

Armed with the right information you can go to mediation or just sit and talk to your husband or wife about the best way to deal with your situation.

And please don’t be offended if your solicitor makes a reasonable charge for a consultation. It is his/her job at the end of the day. No one wants to see exorbitant overcharging. No solicitor should make more work for themselves than is necessary. But it’s not unreasonable to charge a fair price for helpful advice.

 

Author: Nicola Williams Solicitor