Britney Spears and the toxic surprise of child maintenance
The child maintenance support paid by Britney Spears following her divorce made headlines last month as her two children with Kevin Federline are reportedly being moved to Hawaii.
Fans speculate that this is a move by Mr Federline to ensure that he continues to receive child maintenance from Ms Spears for the children beyond the age of 18. Whilst this might make for good celebrity gossip, it also serves as a useful reminder of the interplay between the courts and their ability to make child maintenance orders for children.
More specifically, it demonstrates how the Child Maintenance Service, particularly in cases in which at least one party has a particularly high income, as will be the case for Ms Spears.
The exact amount Federline receives is unknown, but it is understood to be at least $20,000 (£15,787.20) per month. As her sons Sean, (17) and Jayden (16) approach adulthood, Ms Spears may likely anticipate her child maintenance payments to cease when they pass the age of 18.
However, while this is the case in most parts of the United States, the UK, and many other countries, the rules differ in Hawaii, where she could be ordered to continue providing financial support for the children until they turn 23. Over the next five years, this ‘toxic’ situation could equate to an additional $1.2 million (£947,100) in unexpected child maintenance.
For the majority in the UK, the ‘Non-Resident’ parent’s liability to meet child maintenance payments will end when a child reaches the age of 16. However, if the child remains in full-time qualifying education (not including university), it can remain payable until the child reaches the age of 20.
Indeed, there are only very limited circumstances when the court retains a jurisdiction to make or vary orders for maintenance of children. This is because the Government alone, through the Child Maintenance Service, holds primary jurisdiction for assessing child maintenance.
When the Child Maintenance Service does not have jurisdiction, such as if the paying party resides abroad and is not employed by a UK company.
The parties agree to a child maintenance order by consent, albeit on the understanding that such an order is only binding for a period of 12 months. After this time, either party can refer the matter to the Child Maintenance Service for a re-assessment.
When the court needs to make an order for:
Educational expenses;
Costs attributable to a disability; and
Top-up orders
Where none of the above circumstances apply, the court has no ability to intervene, which means that the ‘parent with care’ of the child(ren) would have no option but to apply to the Child Maintenance Service.
Given the situation that has arisen between Ms Spears and Mr Federline, and the level of child maintenance that is seemingly payable, it is prudent for us to consider the court’s ability to make “top-up” orders. For clarity, let’s approach this case as if Ms Spears and Mr Federline are residents of England or Wales.
The Child Support Act 1991 limits the amount of the non-resident parent’s income that can be taken into account by the Child Maintenance Service when making a child maintenance assessment.
In the event that the non-resident parent earns an income of more than £3,000 per week gross (£156,000 annually), the court retains the ability to apply a “top-up” to the child maintenance payment. This is distinct from the court’s ability, on divorce, to make a spousal maintenance award. It is perhaps safe to assume that Ms Spears, given her fame and fortune, will earn sufficient to justify a court ordering a “top-up” to the child maintenance provision.
In order for the court to deal with the matter, the Child Maintenance Service must have first made a “maximum” calculation. As such, in a situation whereby the parent with care believes that the non-resident parent is earning an income in excess of £3,000 per week gross then it would be necessary for the parent with care to make an application to the Child Maintenance Service without delay.
The court must be satisfied that the circumstances of the case make it appropriate for a “top-up” order to be made but, assuming this threshold is satisfied, what is the appropriate order to make?
In CB v KB, Mostyn J indicated that the starting point should be a continuation of the Child Maintenance Service formula and this should continue to apply, providing the non-resident parent's income does not exceed £650,000 per annum.
Whilst the case of Ms Spears and Mr Federline is an extreme example of a very large level of child maintenance payment, we are frequently instructed (whether in the context of divorce proceedings or under Schedule 1 of the Children Act 1989) to seek or defend, such “top-up” orders as a very large proportion of our caseloads involve one party earning an income in excess of £156,000 per annum which will, in principle at least, trigger the top-up jurisdiction.
If you’re concerned about how to effectively manage your finances during a divorce, dissolution or separation, get in touch with our experts in family law today.
Contact Stacey to discuss this further.
