Child aliment / child maintenance is regular financial support that helps towards a child's everyday living costs.
A commonly held misconception is that a parent’s legal obligation to financially support their child ends when that child reaches the age of legal capacity, which is 16 in Scotland.
This is not always the case, as the obligation can continue well beyond what would normally be regarded as ‘childhood’.
In the vast majority of cases, the level of financial support to be paid is agreed between the relevant parties and the agreed amount can be set out in a Minute of Agreement.
If the level of financial support cannot be agreed upon, then either party may seek an assessment from the Child Maintenance Service (the CMS) if the service have jurisdiction, or the court if the CMS does not have jurisdiction.
The Child Maintenance Service
In the event that parties cannot agree upon the level of financial support to be paid, either party may apply to the Child Maintenance Service (the CMS) for a maintenance assessment.
The CMS is a relatively new government organisation set up to succeed the Child Support Agency (CSA). The CMS has exclusive jurisdiction in issues relating to child maintenance where a child is under the age of 16 and both parents / the child live in the UK.
The CMS will continue to have jurisdiction to deal with matters until the child is aged 20 if that child is (a) in full-time education, not higher than A-level equivalent, or (b) that child is living with a parent who has registered for child benefit for the child.
The CMS calculate child maintenance according to a mathematical formula based upon the non-resident parent’s gross weekly income, the number of children for which maintenance is being paid and the number of nights the child or children spend with the non-resident parent.
Once an assessment has been made, the CMS can arrange for the collection and payment of child maintenance and also take enforcement action if child maintenance is not paid. The CMS is likely to charge a fee for this.
The court
If the CMS does not have jurisdiction to deal with payment of financial support for children, then the obligation is contained within Section 1 of the Family Law (Scotland) Act 1985.
The act provides that a father or mother has an obligation to aliment their child until “(a) they reach the age of 18 years or (b) are over that age and under the age of 25 years and reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation”.
To seek child aliment under the 1985 Act, an action requires to be raised in a competent court. Unlike cases where the Child Maintenance Service has jurisdiction, there is no precise formula for calculating the level of aliment payable under the 1985 Act. The court will have regard to the needs, resources and earning capacities of all of the parties, and generally to all of the circumstances of the case.
Speak to an expert Child Maintenance Solicitor
If you would like to speak to one of our family lawyers about your circumstances, click here.
