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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26 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!
Meme on July 2, 2012 at 1:55 pm
OMG why do people want so many partners and so many children with different partners! How do you expect to afford to look after them all?
ann spouncer on November 10, 2012 at 2:43 am
i am being declared bankrupt therefore can i have csa payments made into my daughters account. my ex is paying arrears as my middle child is now 21yrs old!
Marilyn Stowe on November 10, 2012 at 1:43 pm
Dear Ann
Ask your Trustee in Bankruptcy.
Regards
Marilyn
Amanda on January 3, 2013 at 8:18 pm
I am resident parent to our 9 year old son. My ex was paying 15% of his salary, or approx. £400 per month in child maintenance. He then got his girlfriend, tactically, to rent her own home and move herself and her daughter into his home. He then managed to get CSA to cut our son’s maintenance in HALF, virtually overnight. I’ve tried to appeal, back in October, and am being ignored. Not on. My question is, can I ‘sack’ the CSA from administering the payments as I was the party who initially brought them in, and take my ex to court independently? Please reply – survivor of domestic violence, why I left him xx
Marilyn Stowe on January 6, 2013 at 7:41 pm
Hi Amanda
I’d contact Child Maintenance Options for a phone call or webchat to talk through what you can do. They are trained to consider ever avenue and it may be that in this case, reaching an agreement between the two of you is what is required.
Regards
Marilyn
paula on January 9, 2013 at 12:44 pm
I had an informal agreement with my ex-husband regarding maintenance payments. He paid for two years and then stopped. I then found out he was signing on for unemployment benefits while working as a self-employed builder (lots of cash jobs) when I contacted the CSA they informed me that as he was on benefits I would only get a pittance. I explained he worked full time and asked for someone to follow him as he wasnt very discreet about it. They said that was my job. I had two small children, a 30 hour a week job and my ex was violent. So I couldnt do anything. Years later, my boys are now 22 and 25. I have evidence of him working. Statements from people he has done building work for while signing on. I would like to back date for maintenance. This informal agreement was confirmed on the statements made by myself and my ex-husband on our court papers when dividing our assets so he cannot deny that an agreement was inplace. Can i now take him to court to sue him for the back payments? I have no doubt there are plenty of single parents who have ex-partners who sign on while working for cash so that they can avoid child maintenance as well as paying tax. I also read that my boys can take him to court for costs for when they were at university.
Any advice with this would be greatly appreciated
Marilyn Stowe on January 11, 2013 at 10:41 am
Hi Paula
I’m not able to advise on the operation of the CSa but Chikd Maimtenance Options can. You can call them free or go online for a web chat.
Tell me how you get on.
Regards
Marilyn
Name Witheld on February 8, 2013 at 11:56 pm
I’ve been with my partner for two years. He has been divorced since 2004, has 3 children, 13, 15, and 18, the eldest just finishing his a levels. He had a consent order stating that in divorce, as she had profit of 149k from the house sale, which she used to buy her current home with a small mortgage, he would only pay the minimum of 75 a month, which he has always done, and also pays her another 60, for their supposed pocket Money.he also pays benenden medical insurance, uniforms, school trips, and anything else they might need or want. His ex wife decided after Christmas that she wanted to give up one of her part time jobs, and she wanted more money. She wouldn’t give a figure, then in the new year started threatening the csa. Being broke after Christmas and all the usual bills, we are more than struggling ourselves, I work 65 hours a week just to keep my own head above water.and all I do is work, sleep, pay bills. No social life, nothing for anything other than basic needs for food, travel and work. He told her he couldn’t give her anything till end of month as he had no money at all from mid Jan, and we would work out what he could manage without making ourselves homeless. She wasn’t happy with that, but there really was nothing he could do till he got paid. He got a rude and arrogant phone call from the csa stating that she had contacted them. They took his ni number, and said that they don’t care that we could lose our home, or that he might not be able to get to work, he isn’t a person, only a tax. He told them he would take the children off her if they were now a financial burden to her. They told him that he had to make her an offer within a week or they would take over but they would prefer it to be an agreement between them. He got paid a week later and sent her an email to say that he would up her money to 260 a month, and still do the kids 60 pocket money seperately, and did she agree to this. This was within the timeframe specified. She didn’t answer email or reply to texts, so he went ahead and changed her money to what he said he would anyway. He also offered to have two of the children every other weekend as we are now living in a place where we can. This was in their divorce agreement too, but has lapsed over the years due to him saying to her and children that if they wanted to see their friends instead or had other things planned then he didn’t want to force them to spend weekend with him. She was fine with that and of course kids will want to hang out with friends rather than a cruddy flat with their dad! After the divorce she also had her partner move in with her, a few days at first, then full time. It states in the consent order that if this happened she would lose her money for children. He paid anyway. A couple of days ago she sent an email demanding to know why he upped her money without her agreeing. He said he was covering the money she was losing by giving up her job, and still paying what was agreed as csa told him to do so in a week, but she didn’t reply for another two weeks, what was he supposed to do? She also said that he shouldn’t be wanting to see them just to reduce csa payments, which he isn’t, he would love to see more of them, but they are always too busy, and get in touch when they want money. Which has to stop, as the mentality of I can have what I want as dad will get it, as we are financially crippled.so he asked her again if she agreed to the money as full whack csa will destroy us, but she said that they could deal with it now, and first she said she would accept that payment as part of first payment with them, and then changed to say she would use it to pay football fees of 120 for one of children. So I will imagine she will tell them she has had no money from him and clean him out in the next few weeks. I will split up with him if I end up getting assessed by them as I would rather do that than have to sacrifice any of my hard earned wages supplying money for someone else’s children so they can have the latest games console each and all the same games each, when I can’t afford to have a child myself. Over my dead body! There is something seriously wrong, from reading my story, and everyone else’s, when this is allowed to happen. People losing homes, lives ruined forever by the actions of lying ex partners! Life for anyone should not stop because of having children, and even more so for the relationships that don’t work out. Both parties need to provide fairly. Why even bother having divorces, and spending thousands in court to agree about children and consent orders, when it seems your once loved ex can decide whenever they damn like that after 8 years of work, they are tired and want to do nothing so they will ruin the life of the nrp. she should have to take the matter back to court, and he will pay her the csa amount if she gives him his half of equity.which I know wouldn’t happen, before anyone rants! But this law needs to change, to help and benefit everyone, and not punish the ones who aren’t or can’t be there. Thanks for reading, and if anyone has any advice on anything, as finding it so hard to believe that all is lost.
Marian on February 12, 2013 at 9:33 pm
This site is very interesting. I had child maintenance agreed in a consent order in 2004. In the preamble the order states my ex’s intention to continue payments until the latter of age 17 or when they cease full time education . Under the ‘it is ordered by consent ‘ it states that the payments are to be made until age 17 or ceasing full time education, such maintenance to be reduced pro tanto by any sum payable upon a calculation by the CSA. I don’t believe there was a separate contract. Does this sound like a contractual agreement or could my ex now discontinue payments once my daughter reaches 18 despite her going to on to University doing a full time law degree?
Marilyn Stowe on February 15, 2013 at 11:47 am
Dear Marian
Thanks. There should be a court order where the obligations of your ex will legally continue until your daughter’s full time education ends. As such being a court order, it is enforceable in the event he defaults. Check your order has a court seal on it, and if in doubt check with your local court or solicitors.
Marilyn
Sheila on February 17, 2013 at 5:15 pm
my daughter who has 2 children still at school is soon to marry a divorcee who has 2 children for whom he pays £66 a week.He is not a high earner and as soon he will be in part supporting her and her children will he be able to ask a reduction in payments.At present they stay at my daughters house with them on alternate weekends and also every monday evening.His ex-wife often makes things difficult for him.
Marilyn Stowe on February 18, 2013 at 3:04 pm
My suggestion is contact Child Maintenance Options via a web chat or by a free phone call to discuss how it should be resolved. They’re good and will explain the situation and all possible options.
Regards
Marilyn
louise on February 21, 2013 at 11:30 am
I want to know please about how powerful the csa are. My ex has applied to the csa as he knows it will be a nil assessment as he’s self-employed. I have a stamped court order-usual type stating when my child reaches 18 or leaves full-time ed then it ceases. My ex refuses to pay the court order though and I have to resort to requesting the enforcement team to help me. It is dreadful. I am wondering what I can do to get some regular maintenance-I tried the CSA months ago but they let me down as believed his mickey mouse figures as he lied about what he earns of course. There is an obvious great big flawed system in operation which fails many people.
Clare Pritchard on February 24, 2013 at 6:43 pm
If a private agreement has been set to finish once the child reaches 16. Can the mother then request more.even though we have kept to the original agreement?