A concern for many people following a break up is the prospect of an ex-partner refusing to or failing to pay maintenance once an order has been made.

What can I do to ensure payments are maintained?

In these circumstances, an enforcement application can be made firstly to recover any arrears of maintenance and secondly to put measures in place to ensure that payments are maintained in the future. Where arrears are more than 12 months old, you will need the courts permission to recover the arrears and so, it’s really important that you don’t delay making your enforcement application. The court has power to cancel the arrears if circumstances justify it. The court has a range of powers available to ensure that payments are maintained one of which is to make an attachment of earnings order if the non-paying party is employed which means that the employer must deduct the maintenance from source and pay to the person making the application. Another option available to the court is to order the paying party to pay a lump sum to their ex-partner instead of maintenance to bring the maintenance obligation to an end i.e. a clean break or to order a transfer of some of a paying party’s pension to bring maintenance to an end.

What about child maintenance?

Child maintenance is statutory obligation to support your children. Child maintenance is dealt with by the Child Maintenance Service (“CMS”) in most circumstances, although there are exceptions. For example, the Court has jurisdiction where both parties reach an agreement with regards spousal maintenance (although it is open for either party to make an application to the CMS after 12 months) and where the non-resident parent is living abroad. Child maintenance through the CMS is based on a statutory formula, i.e. a percentage of the non-resident parent’s income depending on how much they earn, how many children they have and how often the children stay with them. The CMS has its own powers to collect child support in the event of non payment and can recover arrears. 

In a recent divorce case, Justice Nicholas Mostyn (a British High Court Judge assigned to the Family Division) found that there is jurisdiction for the Court to order capitalised child maintenance, albeit in limited circumstances, commenting that such cases “will remain a very rare bird indeed”. The specific circumstances of this case were that the CMS did not have jurisdiction as one of the parents was living overseas (which means that the Court had jurisdiction in any event), the child concerned was aged 19 (so there was only a short period remaining within which to dispute child maintenance) and the paying party had defaulted repeatedly in respect of child maintenance payments. The full extent of the Court’s power to capitalise child maintenance, especially in cases involving unmarried parents (which are based on different legislation), remains to be seen.

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