Top-up child maintenance orders: What are they?
Often, separated parents are able to agree the level of child maintenance to be paid between them. However, if they are unable to agree, then the CMS is able to assist by calculating the figure on their behalf. The formula used by the CMS takes into account factors such as the number of nights the child spends with the non-resident parent. It also takes account of their weekly gross income up to £3,000.
The authority to deal with child maintenance payments primarily lies with the CMS. However, when the income of the non-resident parent exceeds the £3,000 gross per week threshold, the resident parent may be able to apply to the court for a top-up order.
What is a top-up order and when will the court make such an order?
A top-up order does not override the calculation undertaken by the CMS. Instead, it is an order made by the Court which requires the non-resident parent to pay an additional sum of maintenance above and beyond that already calculated by the CMS.
The court is able to make a top-up order when:
- A maintenance calculation has already been undertaken by the CMS.
- The income of the non-resident parent is in excess of the maximum level assessable by the CMS i.e. £3,000. Case law shows us that it is almost certain the court will not make a top-up order unless it can be clearly demonstrated that the non-resident parent’s income does exceed £3,000 gross per week.
- The court is satisfied that ordering the non-resident parent to make the additional payments is appropriate having considered all the circumstances of the case.
The particular circumstances of the case will also dictate the amount of top-up maintenance to be paid; there is no fixed sum award.
Before issuing an application for top-up maintenance it is important for the parent intending to take that step to consider a number of additional factors. First and foremost, the well-being of the child or children should be the primary concern of both parents. Recognising that the child will benefit from having a similar standard of living when they are with each of their parents should be a factor when setting the level of child maintenance to be paid.
It is also important to consider the costs of undertaking court proceedings. Once involved in litigation it is easy to lose sight of legal costs and they can escalate quickly, particularly if proceedings are contested. Ensuring the legal fees that will be incurred are proportionate to the level of maintenance that could be secured is vital.
Royds Withy King is a City law firm with a local presence. Our Family Team is based in the Home Counties as are many of our clients.