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Can I Get Back Pay for Child Maintenance?

By: Lorna Elliott LLB (hons), Barrister - Updated: 26 May 2017 |
 
Maintenance Child Support Arrears

Q.

I was divorced in 2007 after a 5 year marriage (including 2 years separated). We have a 5 year old child and I'm the resident parent.

My ex has been very lax in paying maintenance, for a long time we got nothing and then £9 a week which has now stopped. My main question is would we be entitled to back payments for maintenance not received in the past?

(S.F, 18 February 2009)

A.

This will depend on whether or not you have already contacted the Child Support Agency or Child Maintenance Service. Although you have mentioned 'maintenance' in your question, this can be by agreement or by court order so I will answer as though firstly you have put in a claim with the CSA/CMS and secondly as though you haven’t already put in a claim.

If You Have Made a Claim Through The CSA/CMS

You mention that for a long time you received nothing, but this then changed to £9 a week. If this payment of £9 per week was facilitated through the Child Support Agency, i.e. you have already put in a claim for maintenance, you will be entitled to claim arrears back to the date on which the CSA/CMS first contacted your ex-husband.

The CSA/CMS can take a long time to process claims and to calculate how much money a non-resident parent should pay, and this could mean that your ex-husband suddenly receives a large bill. If he thought that it was unfair he would be able to challenge it. However, once the CSA/CMS are involved in a child support case, they almost never write off the arrears. Your husband could go bankrupt and would still owe his child support arrears.

If You Have Not Made a Claim

If your husband has been very lax about paying voluntary child support, my advice to you would be to contact the CMS (which has now taken over from the CSA) as soon as possible. Unfortunately, CMS cannot recoup payments that your ex husband promised to pay you in the past under a voluntary or informal arrangement.

However, you may be able to take civil legal action against your ex husband to try to recover the missed payments through the courts.

If your ex husband was ordered to pay maintenance as part of your divorce settlement and he has now stopped paying under this agreement, this can have very serious consequences for him (as he’s flouting a court order.) If this is the case you should consult your family law solicitor as you may need to go back to court.

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I split from my ex husband 13 years ago. In the divorce settlement for the children we agreed a set amount per month with incriminats in line with his wages. I have asked over the years for a raise and always been told he ain't had one or only a small one. In 13 years I have had 2. I recently found out his income has actually nearly doubled since we split up. Also he never declared his pension in the divorce settlement so I had to buy him out of the equity in our property. Can you advise me as it went through the courts. Could I insist on back pay for maintenance and claim in his pension. And yes he has always had contact with the children weekly until now as they are old enough to make their own decisions.
Mrsmrs - 26-May-17 @ 6:47 PM
Cat - Your Question:
My ex partner paid no child maintenance for his two children (now in their late 20's) because the CSA assessment was nil. I challenged this for along time as he was in such a well paid job (and still is) - so well paid he is in the the higher tax bracket. If someone unemployed has to pay at least something, how can someone in full-time employment pay nothing?I am just curious if there is anything I can do now which would benefit my children financially, albeit a long time ago.

Our Response:
Unfortunately, we cannot comment upon this as the reasons why he was given a 'nil' assessment would have been given to you at the time. Child maintenance is based upon the tax the paying parent pays via HMRC. If your ex was paying tax and NI via HMRC, then this would be used to calculate his assesment. The only reason why I can assume he was given a 'nil' assessment was that he was not paying tax/declaring his earnings. Your only recourse would be to seek legal advice with regards to following up the matter.
ChildSupportLaws - 24-May-17 @ 12:23 PM
My ex partner paid no child maintenance for his two children (now in their late 20's) because the CSA assessment was nil.I challenged this for along time as he was in such a well paid job (and still is) - so well paid he is in the the higher tax bracket. If someone unemployed has to pay at least something, how can someone in full-time employment pay nothing? I am just curious if there is anything I can do now which would benefit my children financially, albeit a long time ago.
Cat - 23-May-17 @ 7:34 PM
had_enough - Your Question:
The paying parent in an active cms case (moved over from csa in May 2016) owes £10k in arrears, accrued since 2011. The service have been awful at keeping track of him, and collecting anything, let alone arrears. The paying parent just sold a property, and there was no payment towards the arrears at all, in fact, they increased further. He got signed off work, but still earned money from property sale. Where do I stand in this? What are my rights? Will we ever get any of the arrears?

Our Response:
Only if CMS has applied to court for a charging order on your ex's property can it recoup child maintenance arrears this way either by forcing the sale of the property or when the property is sold.
ChildSupportLaws - 22-May-17 @ 1:47 PM
The paying parent in an active cms case (moved over from csa in May 2016) owes £10k in arrears, accrued since 2011. The service have been awful at keeping track of him, and collecting anything, let alone arrears. The paying parent just sold a property, and there was no payment towards the arrears at all, in fact, they increased further. He got signed off work, but still earned money from property sale. Where do I stand in this? What are my rights? Will we ever get any of the arrears?
had_enough - 22-May-17 @ 12:23 AM
Cali52 - Your Question:
I just got word to say my ex is to pay £30 a MONTH for our daughter. He has his own business and is now remarried and is now a step father to a disabled child. How can payment be so low as when he wasn't working the payment was to be £28 a month. This payment doesn't even cover school lunch for the month.

Our Response:
Child maintenance is based upon the tax your ex pays on his earnings. A good accountant can offset expenses against earnings and this may bring down the amount of tax your ex earns. A small business can take a lot of expenditure to set up and there can be a lot of costs involved. The CMS are powerless to to challenge this as it is all legitimate and above-board - but it doesn't help the primary carer.
ChildSupportLaws - 16-May-17 @ 10:38 AM
I just got word to say my ex is to pay £30 a MONTH for our daughter. He has his own business and is now remarried and is now a step father to a disabled child. How can payment be so low as when he wasn't working the payment was to be £28 a month. This payment doesn't even cover school lunch for the month.
Cali52 - 15-May-17 @ 10:45 AM
Optimus - Your Question:
My mum and dad got divorced when I was about 8 years old and he never paid anything towards our* upbringing (*my brother is 18 months older than I). Im now 34. He has and lives with his other Family in the south of the UK. He was violent and abusive to our mother but not to us (I dont recall). Would I/we have a case if we were to take him to court to try recompense for never getting a penny?

Our Response:
Child maintenance is not paid to the children, but to the primary carer of the child. Therefore, you would not be able to take the matter to court to claim child maintenance from your father.
ChildSupportLaws - 3-May-17 @ 2:46 PM
My mum and dad got divorced when I was about 8 years old and he never paid anything towards our* upbringing (*my brother is 18 months older than I). Im now 34. He has and lives with his other Family in the south of the UK. He was violent and abusive to our mother but not to us (I dont recall). Would I/we have a case if we were to take him to court to try recompense for never getting a penny?
Optimus - 30-Apr-17 @ 5:16 AM
Hi, I separated from my partner in 2012, we have 2 children(now aged 21 and 17), the youngest is still in full time education. As I kept the family home I never claimed any maintenance from my ex but he recently inherited some money and two properties which he has subsequently sold. My question is; if I now claimed maintenance through the support agency would my dependent child be entitled to any of her father's inheritance? I don't know how much it is exactly but at a guess I'd say somewhere around £300,000- £500,000. Any advice gratefully received.
Teri - 28-Apr-17 @ 8:38 PM
Kev - Your Question:
I put in a claim to cms in December due to problems with the ex paying for the girls. He then changed jobs and had a big drop in pay and cms told him to pay the original amount they had calculated untill they had recalculated from new income. He refused to pay this and paid me a lot less will he owe me arrears of the difference he should of been paying up until the new calculation was made as cms never get back to me despite multiple calls

Our Response:
Please see gov.uk link here which should help you further.
ChildSupportLaws - 26-Apr-17 @ 12:18 PM
I put in a claim to cms in December due to problems with the ex paying for the girls. He then changed jobs and had a big drop in pay and cms told him to pay the original amount they had calculated untill they had recalculated from new income. He refused to pay this and paid me a lot less will he owe me arrears of the difference he should of been paying up until the new calculation was made as cms never get back to me despite multiple calls
Kev - 25-Apr-17 @ 1:50 PM
Lkw - Your Question:
Hi my ex has 3 children and has paid £50 per week even though he should have been paying alot more if I had gone through csa. He now only has 1 under 18 and has decided to radically reduce the amount he pays although hes on a good wage (self employed so can put down on his accounts what he likes). I dont think this is fair as he didnt pay enough to begin with can I get csa back payments for what I should have been entitled to for the last 9 years or am I too late because I was soft enough and stupid enough to just accept what he offered all those years ago.

Our Response:
I'm afraid not. If you have a family-based arrangement it is based on just that, an agreement between you both. Therefore, you cannot go to Child Maintenance Service and ask for retrospective payments. Your only recourse would be to apply to CMS for your child who is under 18 and CMS will undertake a financial assessment on your ex. If your other two children are 18 and in full-time education and you are still in receipt of child benefit for either of them, then you will be able to make an additional claim.
ChildSupportLaws - 24-Apr-17 @ 10:16 AM
Hi my ex has 3 children and has paid £50 per week even though he should have been paying alot more if I had gone through csa. He now only has 1 under 18 and has decided to radically reduce the amount he pays although hes on a good wage (self employed so can put down on his accounts what he likes). I dont think this is fair as he didnt pay enough to begin with can I get csa back payments for what I should have been entitled to for the last 9 years or am I too late because I was soft enough and stupid enough to just accept what he offered all those years ago.
Lkw - 23-Apr-17 @ 9:38 AM
Jay3 - Your Question:
My partner was paying csa for his son from a previous relationship for 6 years before it stopped in November as it was changing over to cms. Advice please! He has recieved no letted from cms or rang cms, but will he owe from when csa stopped in november or from when either parent makes a new claim? Advice would be really appreciated. Thanks

Our Response:
If arrears have built up whilst a case was with the CSA, and the paying parent chooses to use the Child Maintenance Service, the arrears will still stand and can be enforced. Child maintenance arrangements continue as usual until the date CSA would have informed your partner in a letter. The closure of CSA was not a green light to stop making payments, as by law your partner is responsible to continue to financially support his child. Please see gov.uk link here.
ChildSupportLaws - 21-Apr-17 @ 9:55 AM
sam - Your Question:
My daughters is nearly 5 and her father has never paid a penny for her, he has no contact with her either. ive been to csa before but they couldn't help me as hes self-employed.he has his own business which is doing really well but hes put it in his partners name so I cant get nothing off him. hes got 4 other children that he doesnt see or pay for either and another on the way.how can I get maintenance and back pay in maintance??

Our Response:
You may wish to seek legal advice about taking the matter to court. A court would look into your ex's finances deeper to try to prove he is 'earning'. However, you would have to have a strong case. Otherwise, if you lose you would have to pay court costs etc.
ChildSupportLaws - 20-Apr-17 @ 2:37 PM
Toddy - Your Question:
My dad has never given me a penny all my life. I am 51 & my father is 74 he has just been paid a redundancy amount of £250,000. I was wondering if l or my mother can claim the maintenance he avoided for 16yrs of my life ??

Our Response:
I'm afraid not. A parent cannot claim child maintenance retrospectively. Plus, the CSA didn't launch fully until 1993 - therefore your mother would have never made an original CSA claim.
ChildSupportLaws - 20-Apr-17 @ 11:46 AM
my daughters is nearly 5 and her father has never paid a penny for her, he has no contact with her either. ive been to csa before but they couldn't help me as hes self-employed...he has his own business which is doing really well but hes put it in his partners name so i cant get nothing off him. hes got 4 other children that he doesnt see or pay for either and another on the way..how can i get maintenance and back pay in maintance??
sam - 20-Apr-17 @ 11:00 AM
My partner was paying csa for his son from a previous relationship for 6 years before it stopped in November as it was changing over to cms... Advice please! He has recieved no letted from cms or rang cms, but will he owe from when csa stopped in november or from when either parent makes a new claim? Advice would be really appreciated. Thanks
Jay3 - 20-Apr-17 @ 10:19 AM
My dad has never given me a penny all my life . I am 51 & my father is 74 he has just been paid a redundancy amount of £250,000 . I was wondering if l or my mother can claim the maintenance he avoided for 16yrs of my life ??
Toddy - 19-Apr-17 @ 5:52 PM
Lashes2508 - Your Question:
My partner of 10 years pays maintenance for his son who is now nearly 17 and works full time therefore we believe payments should now stop, he pays £400 per month. His ex says that because it was written in their original court order he must pay. He pays this collects his son every other weekend 80mile round trip , takes him on holiday ,pays phone etc whilst she sold the family home and has brought another with partner , she has no other dependants and claims she needs it for her car ! Yet she will never drop off or collect. I too pay maintenance for my son as he lives with dad but share everything. Does he have to pay ? Could he reduce the payment ?

Our Response:
Your partner can either take the matter back to court to have the order varied. Or take advice from Child Maintenance Services who may tell you that any parent is eligible to stop paying once the child no longer receives child benefit.
ChildSupportLaws - 19-Apr-17 @ 3:02 PM
eddiew- Your Question:
I was paying child maintenance to my ex partner through CMS but she decided she no longer wanted the money. Can she suddenly change her mind and back date the payments for however long I haven't been paying (despite the stop in CMS payments being her request)

Our Response:
Yes. Therefore, you would need to speak to CMS directly regarding what is the correct procedure in cases such as this. You would definitely want it in writing.
ChildSupportLaws - 19-Apr-17 @ 12:31 PM
I was paying child maintenance to my ex partner through CMS but she decided she no longer wanted the money. Can she suddenly change her mind and back date the payments for however long I haven't been paying (despite the stop in CMS payments being her request)
eddiew - 18-Apr-17 @ 11:28 PM
Moo - Your Question:
Hi my ex partner has never paid for my daughter in the past twelve years or so, my wonderful husband has bought her up as his own, she is seventeen years old she has recently had contact with him,am I able to claim maintenance as I never knew where he was before

Our Response:
I'm afraid, unless you previously put in an application for child maitenance, then you would not be able to claim retrospectively.
ChildSupportLaws - 18-Apr-17 @ 2:51 PM
Tarnia - Your Question:
I had 3 children and a court order from Loughborough Magistrates Court for £60 per week payments and after a couple of months the father stopped paying he left the UK to live in Canada and made no further payments (I was not made aware of where he went and he did not tell the court). There was numerous attempts by the court to find him, but we did not know where he was. The children are now in their thirties, and I have discovered where he lives. I tried to contact the court regarding this and it looks like the records have moved to Leicester and probably archived. The debt must be over £ 40,000.00. My questions are twofold 1) can the claim be reopened and the debt recovered and if. not, can the debt be placed against any assets he has when he passes away? Thanks for any help.

Our Response:
You would have to seek legal advice regarding this as it is beyond our remit to advise.
ChildSupportLaws - 18-Apr-17 @ 11:44 AM
I had 3 children and a court order from Loughborough Magistrates Court for £60 per week payments and after a couple of months the father stopped paying he left the UK to live in Canada and made no further payments (I was not made aware of where he went and he did not tell the court).There was numerous attempts by the court to find him, but we did not know where he was.The children are now in their thirties, and I have discovered where he lives.I tried to contact the court regarding this and it looks like the records have moved to Leicester and probably archived.The debt must be over £ 40,000.00.My questions are twofold 1) can the claim be reopened and the debt recovered and if. not, can the debt be placed against any assets he has when he passes away?Thanks for any help.
Tarnia - 17-Apr-17 @ 3:31 PM
Hi my ex partner has never paid for my daughter in the past twelve years or so, my wonderful husband has bought her up as his own, she is seventeen years old she has recently had contact with him,am I able to claim maintenance as I never knew where he was before
Moo - 16-Apr-17 @ 6:33 PM
My dad has never paid any maintenance for me while I was growing up, I'm now nearly 28. Would it be too late for my mum to open a case? My dad never had anything to do with me whilst I was growing up. I know my mum opened a case with csa and my dad completely denied knowing her or me, quit his job and moved house. He then told my mum that he will pay into my bank account £100 a month, which he did when I was 15 and he did it for 11 months before stopping payments, just before my 16th birthday. Would my mum be entitled to a back pay?
Dkbarber - 16-Apr-17 @ 3:40 PM
My partner of 10 years pays maintenance for his son who is now nearly 17 and works full time therefore we believepayments should now stop, he pays £400 per month. His ex says that because it was written in their original court order he must pay. He pays this collects his son every other weekend 80mile round trip , takes him on holiday ,pays phone etc whilst she sold the family home and has brought another with partner , she has no other dependants and claims she needs it for her car ! Yet she will never drop off or collect . I too pay maintenance for my son as he lives with dad but share everything . Does he have to pay ? Could he reduce the payment ?
Lashes2508 - 16-Apr-17 @ 10:26 AM
When i was divorced about 15 years ago the court ordered my husband to pay £100 per month child maintenance. Now he only paid about 2 or 3 months before stopping payment. Is there anything i can do to try and get the backdated money or have i left it too long?
Mandy - 14-Apr-17 @ 1:23 PM
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