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Under the Child Support Act 1991, the courts are usually not able to make child maintenance orders where the Child Maintenance Service (CMS) has jurisdiction.
However, where there is exactly 50/50 shared care, the CMS cannot make an assessment. The CMS can only act where one parent provides less day‑to‑day care than the other. Where care is truly equal, there is no “non-resident parent” and therefore no CMS assessment can be made.
There is a presumption that the recipient of child benefit is the person with care, making the other parent the non-resident parent. This presumption can be rebutted, for example, by noting that one parent may be above the income threshold for child benefit and therefore unable to claim it.
In a recent case known as OS v DT, it was determined as follows:
- In cases of exactly equal shared care, the CMS has no jurisdiction.
• Because the CMS cannot make an assessment, the usual bar that prevents the court making an order for child maintenance does not apply.
• The court therefore retains power under section 23(1)(d) of the Matrimonial Causes Act 1973 to make a child periodical payments order.
This case is important as it confirms that in true shared‑care cases the court, not the CMS, is the proper authority to deal with child maintenance disputes where the parties were married.
Secondly, it is likely to lead to more disputes about whether care is exactly equal. Establishing equal care now carries real legal significance.
While OS v DT may settle the question of who decides child maintenance, it does not give any guidance on how the courts should decide how much maintenance to order in shared‑care cases. Traditionally, judges have used the CMS calculation as a starting point. Here, the CMS would do nothing at all.
If you would like advice on child maintenance, please contact one of our family lawyers on 01329 822 333
https://www.churchers.co.uk/services-individuals/divorce-cohabitation/