It is probably quite well known that spousal maintenance stops when the receiving former wife (it is usually a wife) remarries.
It is probably also quite widely known that where parents are not married but have children, there is no spousal maintenance for the mother if the relationship comes to an end.
Child Support Formula
And finally it is also within most people’s understanding that child support is governed by a formula and there is an agency independent to the courts that can assess and collect this. It is often still referred to as the CSA but it is (today at least) called the Child Maintenance Service (CMS).
Top-up Order – HECSA
However where the paying parent’s income exceeds £156,000 a year, you can apply to the court for a ‘top up order’ and that opens up a new world of claims for people who have children under the age of 18 or dependants in further education.
In the 2023 case of James v Seymour, Judge Mostyn set out specific categories where an amount can be paid for (usually) the mother’s overall budget. The concept of an overall payment was created by the same Judge in a case in 2022, and named HECSA ( Household Expenditure Child Support Award) and had been picked up and used in other cases by different Judges. In James v Seymour the Judge was able to clarify that it can be used in 3 sets of cases:
- where there is no spousal maintenance claim because the applicant has remarried (as in that case) or
- because spousal maintenance is precluded by a Pre or Post Nuptial Agreement, or
- because the parties have never married so it is a case under Schedule 1 of the Children Act.
A HECSA can include the reasonable costs of the parent with care’s household where (s)he cannot meet them, but not costs unrelated to the parent’s role as carer of the child. So you would expect to see utility bills, transport and household costs, clothing and leisure as well as holidays and activities forming part of this budget, making it look very like a spousal maintenance claim.
In these cases, (the Judge said) the CMS formula is irrelevant and maintenance should be determined by reference to the parent’s budget in the context of all the relevant circumstances.
Adjusted Formula Methodology
In families where there is a spousal maintenance claim, and the paying parent’s income exceeds £156,000 a year, the court can also address child support using a new formula again created by Judge Mostyn which he called the Adjusted Formula Methodology. He produced a table which is attached to his Judgement in James v Seymour to give lawyers a “loose starting point” for their claims. It is not a formula to be applied rigidly; the parent with care still has to produce a budget which can be scrutinised and the court has an overall discretion (which is absent in the CMS application of its formula to families who fall within it).
So Judge Mostyn and his HECSA have significantly challenged those widely held assumptions I set out at the beginning and if you fall into any of those categories, and your former partner has an income in excess of £156,000 a year, you should seek legal advice.
By Karen Anker, Family Solicitor at Cambridge solicitors Barr Ellison.
