Avoid the CSA: consider a contractual solution
All parents have a right to apply to the Child Support Agency for the assessment of child maintenance, but our clients often ask us about the interplay between the jurisdiction of the court and that of the CSA.
For example, what if parents reach a private agreement for child maintenance in the context of an overall financial settlement, which is likely better than that which the CSA would award to the receiving parent? Recently a client of mine was startled to discover that even though a generous private agreement had been proposed by the other party, it would be invalidated after 12 months if that party decided to apply to the CSA in a bid to reduce child maintenance payments.
If you have children and are going through divorce or considering it, I recommend that you acquaint yourself with the following rules:
1. When a court order has been made before 5 April 1993: the court retains jurisdiction. The CSA will only have jurisdiction if the parent with care claims income support.
2. When a court order has been made between 5 April 1993 and 6 April 2002: the court retains jurisdiction unless the parent with care claims income support, or the court discharges the order.
3. When a court order has been made after 6 April 2002: the court has jurisdiction for agreements reached between the parties. Once the order has been in place for more than 12 months, however, either party can apply to the CSA after giving two months’ notice to the other party. The CSA will then take over and assess child maintenance. The parts of the court order relating to child maintenance “fall away” and will never be reinstated, even if those parts of the court order had provided for child maintenance beyond the CSA statutory provision.
4. When there is no court order: in those circumstances, there would be no Court jurisdiction unless the parties agree or the CSA does not have jurisdiction, for example step parents. The CSA has jurisdiction.
As an example of the third and largest category, let’s take a couple who, upon divorce, settle their financial arrangements. The parent with care secures capital, pension, income or agrees to a clean break on favourable child maintenance terms (in excess of the CSA formula, perhaps, or ignoring any overnight staying contact for the purposes of deduction of child maintenance). All is well.
Twelve months later, the parent who pays child maintenance applies to the CSA to undertake an assessment. To the horror of the parent with care, the child maintenance payments are reduced. All the good intentions and the work done to achieve the global settlement are completely undone.
Can the parent with care do anything to prevent this from happening?
Any agreement that seeks to exclude a parent’s rights to apply to the CSA is void. However, as my client was delighted to discover, there is an often overlooked way for those looking to create an arrangement to minimise the impact of the CSA…
A solution in contract
The parties can “protect” themselves from the CSA if they set up payments by means of a contractual agreement. To put such an arrangement in place will usually require all of the following:
1. A recital in the preamble of the order setting out the party’s intention
2. Provision for child maintenance in the order itself
3. A separate child maintenance agreement (“the contract”) setting out the obligation to pay.
The contract is designed to create a “compensatory debt”, to equal any advantage secured by either party on application to the CSA.
The contract can also be used to provide for a minimum child maintenance payment (for example if a substantial lump sum has been paid instead, or in situations where one party is concerned that the work or income of the payer is likely to be reduced or purposely depressed).
It’s flexible
With a contractual agreement, parties can reach child maintenance agreements, safe in the knowledge that they have contractual claims against their former spouse if the CSA becomes involved and assessment of maintenance falls below the original agreement.
It’s enforceable
If necessary, the same remedies are available as for breach of contract, including damages, judgment summons and potentially even bankruptcy.
In one case in which I was recently involved, we went one better. We secured provision in the order so that if the payer defaults, the final order can then be set aside in full, thereby reopening the receiving party’s matrimonial claims in their entirety.
If you are struggling with the conflicting and often contradictory jurisdictions of the court and the Child Support Agency, and you want to make provision to minimise the impact and uncertainty of the CSA, I suggest that you consider a contractual solution. It won’t work for everyone – but it may work for you.
James Thornton is a lawyer mediator at Stowe Family Law Settlements and a partner at Stowe Family Law’s Harrogate office. With 15 years’ experience, James’ specialisms include dealing with the financial issues arising from divorce, particularly when substantial personal, business or pension assets are involved. His expertise also extends to cases involving children. A former member of the Law Society’s Family Panel, James is an Accredited Specialist member of lawyers’ organisation Resolution, sits on the North and West Yorkshire Resolution committee and is a member of the West Yorkshire Family Justice Council.
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12 Comments
JamesB on May 23, 2011 at 9:16 am
These need to be tested in Court I think. I cannot see them being legally enforceable. For example, what happens if events superceed them, such as the NRP having another child with the new partner, or moving in with them and their children or the children (or one of them) changing residence and deciding to live with the other parent. Or the PWC and the children moving in with a millionaire.
You might say, that then should apply to court for a variation, but people don’t like going to Court which is why the CSA was set up and shouldn’t have to spend so much on it.
Personally, I am arguing with the Special Committee on CM to abolish the CSA and put it back to the courts and with you that people should be allowed to go to the CSA.
My main gripe is with the formula, I am a name, not a number. That is what I want the abolishion of.
Coercing and threatening the nrp into one of these isn’t going to help the relationship between the two parents at all and will make things worse.
Personally I hope they scrap the CSA. Until then NRPs will continue to minimise their payments against your broad brush (disregarding the individual circumstances) approach. Until they can go before a Judge and shout what they can afford rather than all this nonsence.
That all said, I do not believe your contracts hold water. Presently I have just scrapped one of these by going to the CSA and the Judge upheld my point that because was over a year, was appropriate (with 2 months notice) to go to the CSA. I went because my ex wouldn’t give me a reduction without going to court for a variation for my new daughter. So I have gone to the CSA instead.
Until you lawyers are able to represent men and women you will continue to be in decline. With fewer marrying and using you. That is why I support the abolishion of the CSA and pre nups and marriage. I have 2 daughters and 1 (asd) son. Regards, James.
Tulsa Divorce Attorneys on September 10, 2011 at 6:50 pm
Marilyn in the US, each state has their own version of the CSA. In Oklahoma, our’s is called DHS. DHS is hughley dysfunctional and there is a quickly developing public outcry for a major overhaul of the DHS system. It sounds to me like the citizens of your jurisdiction are in a similar frame of mind towards the CSA.
Marilyn Stowe on September 10, 2011 at 10:57 pm
Tell me about it. I really had high hopes when it began but the calculation was ridiculously difficult and its never improved. I have never come across anyone who has been happy with the system. Ever.
(What’s the betting I will now get lots of comments from happy customers of the CSA?)
mike roephone on September 17, 2011 at 8:43 pm
I agree that the CSA should be scrapped. It is the typical of all government departments using the one shoe fits all computation. In my opinion the CSA should only be used as a last resort, and should invoke itself as a mediation service to ensure both parties that have been forced to use it mutually agree on what is a reasonable and most importantly feasible contribution towards child support. Unfortunately because of the way it operates it encourages abuse of the system, which unfortunately then amplifies any animosity that may exist to an already difficult situation. At the moment unfortunately many of us have no choice at all, as ultimately it would appear the CSA have the power to override any arrangement that may be in place upon a simple request. Every situation is different, and that is why they should not just be allowed to act the way they do, but if they were mediators invoked as a last solution then all parties could get together and discuss things and make a suitable arrangement. As you say if you are a beneficiery (customer or PWC) of the CSA, then its great but if you are the trustee (usually the NRP) then unfortunately someone else is calling the shots.
JamesB on September 19, 2011 at 10:26 am
Being a Non-Resident-Parent is a contradiction in terms anyway.
My 7 year old daughter said to me the other day that she finds it confusing having 2 homes.
So much for all this progression.
JamesB on September 20, 2011 at 10:04 am
No one likes the CSA. No one thinks contact (access to see the children) law is fair either.
Name Witheld on September 27, 2011 at 7:56 am
The Judge totally ignored the % of child maintenance recommended by the CSA for each child and has ordered my partner to pay a huge sum to his ex, leaving him with £300 a month to live on, as I am expected to burden all joint living costs whcih will leave me in debt and possibly homeless!! So what is the point of the CSA.
Duncan on January 5, 2012 at 9:32 pm
what about this then; I am going through a divorce after a difficult 12 months when I tried desperately to make things work with my wife. It wasn’t enough and she left the matrimonial home and took the children with her. Initially we shared care on a 4 night rolling rota, however my wife was adamant that she did not want me to have shared residency so consulted a solicitor. Within a week she obtained a non molestation order and an occupation order preventing me from communicating with her or going within 50 meters of the house. I continued to pay all the bills and 3/4 of the mortgage amounting to 1200 per month. My wife did not return to the house choosing to stay at her mothers 400,000 barn conversion. She then applied to the CSA for child maintenance. I have asked that the CSA take into account my mortgage payments however because my wife is not living there they will not. In addition they will not take into account the maintenance (300 per month) that I pay to my eldest children as it is a voluntary arrangement. I have now been forced to make an application to the CSA myself for my eldest children which will result in them receiving less despite the fact that I have been paying the same amount for over ten years. Family Law in this country is absurd and it’s about time that politicians stopped arguing over insignificant matters and did something to stop fathers being punished just for wanting to be a dad. The CSA works on the premis of one size fits all, well it bloody doesn’t but I’m an easy target because one they have “applied the legislation” they simply deduct it from my earnings. As it stands I am on the way to being in arrears on my mortgage, loans and exceeded my overdraft. Next step bankruptcy and job loss as I am a serving police officer and being declared bankrupt is a discipline offence. Then no one gets any money! Hats off to the CSA!
Marilyn Stowe on January 5, 2012 at 9:53 pm
Duncan
Have you discussed all this with your solicitor? Is there anything you can do within the divorce proceedings in terms of achieving a fair overall income/capital split ?
Regards
Marilyn
Duncan on January 8, 2012 at 8:47 am
Marilyn
I have spoken in length to my solicitor but it doesn’t seem to make any difference. I have now been told that my wife has completely emptied the matrimonial home and has dropped off, what she believes, are my personal effects. The house has been put on the market through an estate agent who is a family friend of my wife’s (very cozy) and he has told me that he will only notify my wife of any offers as she is his client.
I continue to have to cope with supervised access to my children as she claimed to the court that she had grave concerns over my ability to cope with the children and she felt I was a danger to them. This has placed a significant burden on my parents who are both over 70 and have to be with me every minute of the day and my father has dangerously high blood pressure. To be honest I am now struggling to pay the monthly solicitors fees which are over £1000 a month, especIally when I don’t appear to be getting anywhere (no disrespect to My Solicitor as I know she is
very busy). Can’t help but think I will come out of this with nothing, shared residency isn’t an option I am told by CAFCASS as it only works with parents who can agree. Well that’s no use to me as my wife wont agree on anything. What has happened to me, the lies that have been told and listened to by the county court, has restricted my own human rights and those of my children but no one is actually bothered.
Marilyn Stowe on January 8, 2012 at 9:52 pm
Duncan
I have edited your message slightly by removing the name of your solicitor. She is an associate at her firm. The firm you have instructed have a number of senior fee earners. One option is to immediately contact the head of department and ask for an urgent meeting to explain all your concerns. You should not be charged for this meeting.
You can ask for an explanation as to why this is happening,perhaps ask for a chamge of fee earner, agree a plan of action on all fronts going forward so that the firm acts more proactively and regains your confidence. The agreed plan should be confirmed in writing. The issues you raise cause me concern but as I don’t know all the facts I won’t comment.
If you have lost faith in them, you can change solicitors. you don’t have to stick with them.
It’s very important you have confidence in your lawyers. Remember you are paying the bill!
Best wishes,
Marilyn
Tracey on February 22, 2012 at 2:59 pm
I’m struggling to find information via the internet with regard to consent orders. My ex and I have been divorced for ten years, the divorce was straightforward and child maintenance was agreed for our son via a consent order from the court. Unlike some divorced parents we have a very positive relationship. However, in the ten years since our divorce my ex re-married and had two more children. His second wife left him three years ago, completely without warning, and took their children with him. She has not allowed him to see his children since, he doesn’t even know their address. In the last month he received his decree absolute but she refused to come to a financial agreement in court with regard to child maintenance preferring instead to go through the CSA. Now, this where I get confused…… my ex has received all the relevant forms from them and gave them a call to clarify a few things before completing them, the CSA have advised him to STOP paying maintenance to me for our son and have said that I will need to go through them. Can they do this? Can they force me? Is our consent order still valid after ten years? Can they force me to contact them? Would it be easier for us to cease our original agreement and for him to do everything via the CSA? Financially, I don’t want to lose out for the sake of our son but don’t want to see my ex out of pocket either. I’m also upset that by advising him to stop payments they’re tarring him with the ‘absent father’ brush which he is definitely not!