Many parents are reliant on the financial support they receive via child maintenance payments. However, in cases where the non-resident parent is a high net worth individual, it can be frustrating when the amount of child maintenance paid is relatively low in comparison to the non-resident parent’s wealth.
In these circumstances, it may be possible to increase the amount of maintenance payable by way of a ‘top-up order’. This blog explores the use of top-up orders further.
How is child maintenance calculated?
If the parents cannot agree on the amount between themselves, then the figure will be likely be calculated by the Child Maintenance Service (CMS) formula. Family Law Partners have their own Child Maintenance calculator based on the rules by the Child Maintenance Service, click here.
The CMS provides for five different rates of child maintenance. The formula then considers the non-resident parent’s gross income, up to a gross weekly maximum of £3,000 (or £156,000 per annum), to determine the rate of applicable maintenance accordingly.
Factors such as the number of overnight stays the child has with the non-resident parent, and whether the non-resident parent is also making maintenance contributions for other children, are also relevant to the calculation.
But what if the non-resident parent’s income exceeds £3,000 gross per week?
How can the Court help?
The Courts actually have very limited powers in respect of child maintenance payments as the authority to deal with these matters now primarily lies with the CMS.
However, where the income of the non-resident parent exceeds the maximum income that will be considered by the CMS calculation, it might be possible to apply to the Court for a top-up order under section 8(6) of the Child Support Act 1991.
What is a top-up order?
A top-up order is an order made by the Court requiring the non-resident parent to make child maintenance payments in addition to the figure already calculated by CMS.
Although these orders do not override the CMS calculation, they can indeed provide a useful mechanism to obtain an increased child maintenance award in cases where the non-resident parent is particularly wealthy.
When will the Court make a top-up order?
The court can make a top-up order when:
- A maintenance calculation is already in force
- The income of the non-resident parent is in excess of the maximum level assessable under the CMS
- The court is satisfied that, in the circumstances of the case, ordering the non-resident parent to make the additional payments is appropriate
How much additional maintenance will a top-up order provide?
There is no specific sum awarded by way of a top-up maintenance award. The sum awarded will vary according to the particular circumstances of each case.
Lessons from Dickson v Rennie
When considering the approach to granting top up orders, it is useful to consider Mr Justice Holman’s judgment in the case of Dickson v Rennie.
In this case, the mother’s application for a top-up order was dismissed on the basis that, although the father was ‘a person of significant wealth’, his income for UK tax purposes fell below the maximum income assessable by the CMS. The father was resident in Jersey and his UK income only represented a small proportion of his overall wealth.
It is a complicated case due to the father being resident outside the UK (but inside the British Isles). However, the CMS had jurisdiction due to the father being employed by a UK based company registered under the Companies Act 2006.
Three key lessons can be taken from this case:
- Limited powers of the Court -The Courts take a strict approach to granting top-up orders. Although the Court was sympathetic to the mother, Holman J was clear that the Court will not have jurisdiction to make a top-up order unless the CMS have themselves first calculated the income to be in excess of the maximum level assessable under their formula.
- Proportionality of legal costs – Parties must ensure that the legal fees incurred when litigating over child maintenance are proportionate to the amount of maintenance at issue. In this case, Holman J criticised ‘the folly with which intelligent parents can allow themselves to be sucked into a vortex of litigation’ and lose sight of cost proportionality.
- The best interests of the child – In cases where the legal obligation of child maintenance under the CMS is relatively low, parents should recognise that children benefit from having a similar standard of lifestyle when they are with each of their parents. They should agree on maintenance payments accordingly. Holman J commented ‘this is a court of law, not of morals’ as he pleaded with the parents, in this case, to ‘search their consciences’ to put the interests of their child first.
How can we help?
Generally, it is not cost-effective for solicitors to obtain a CMS calculation on behalf of clients. The starting point should be to contact the Child Maintenance Options. However, we can certainly assist you in your child maintenance negotiations and in any application for a top-up order, please contact us to discuss your unique situation.
Child Maintenance Options– 0800 953 0191
Making a child maintenance arrangement: Using the Child Maintenance Service – GOV.UK (www.gov.uk)
Rosa Schofield is a Family Law Solicitor based in our office in London.