When parents separate, one of the first concerns is how children will be financially supported. At XK Solicitors we are often asked is can Child Maintenance Services (“CMS”) backdate CMS payments to the date of separation, in Scotland? The short answer is no – but there are important details you should understand.

Child Maintenance through CMS

CMS have an online calculator which will provide you with an idea of what you or you ex is due to pay. The calculator page (at the time of writing) is here. CMS considers the non-resident parent’s income (from HMRC records if necessary), number of children and the number of days a week the child stays overnight with the non-resident parent (amongst other things) to work out a required payment.

• Start date: Maintenance only becomes payable from the date a parent makes an application to CMS.
• No backdating: The CMS has no power to order payments for any period before that application. Even if parents separated years earlier, CMS maintenance starts from the date the claim is made.
• Voluntary payments: If the paying parent has been making informal or voluntary payments, CMS can take these into account when calculating arrears… but only from the date of the initial application.

What About Aliment?

Although CMS cannot deal with the retrospective payments, the courts do have power to make back dated awards of aliment under the Family Law (Scotland) Act 1985 (on special cause shown – discussed here).

• Aliment is financial support that one person may be required to pay to another, or their child directly if over 16.
• In practice, most claims for children under 16 are made through the Child Maintenance Service (CMS) rather than for aliment through the courts.
  CMS payments continue until a child turns 16, or 20 if in full-time non-advanced education (school/college – not uiniversity).
  The courts can deal with aliment for children under 16 if:
  Parents want a formal court order instead of CMS involvement.
  The paying parent earns more than £3,000 gross per week (£156,000 per year) – CMS won’t assess above that, so the court can order “top-up” payments.
  CMS cannot deal with the situation (rare but possible, e.g. if the parent lives abroad in a non-reciprocating country).
  
• For a child under 16, aliment or maintenance is paid to the parent or carer the child lives with. From 16 onwards, the young person can usually receive it directly.
• The sheriff court will usually only back date Aliment to the date of the court application, but can also Order Aliment payments retrospectively if a special cause can be shown (as per link above).

Key Takeaway

• CMS child maintenance cannot be claimed retrospectively – it only starts from the date of application.
• If support is needed for a period before that date, you can make an application for aliment through the sheriff court.

How We Can Help

At XK Solicitors Aberdeen, we specialise in family law and child maintenance matters. We can:

• Help you apply for aliment where CMS cannot assist.
• Negotiate financial arrangements that put your child’s welfare first.

If you have questions about child maintenance, contact us today for clear, practical advice.

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