Consent Order: CMS say it over-rides application

Hi All.

Finally, after over 4 years, my divorce looks like it is almost complete. One sticking point is CMS payments. My ex has agreed to pay the ''going rate'' for our 2 girls and I rang the CMS to see if I could start the ball rolling. It was all going very well, until I said that we had a sealed Consent Order. As soon as I said that, the lady told me that I had to wait for 1 year and 1 day after this until I can apply for maintenance through the CMS. I was very surprised by this, as the exact wording in our consent order states:

"The Respondent will pay periodical payments to the Petitioner for the benefit of (Daughter 1) and (Daughter 2) at the total rate of £370 per month until such time as child maintenance payments through the Child Maintenance Service have been arranged.
Payments will continue until the children respectively
(a) Attain the age of 18; or
(b) End their full-time secondary education, whichever is later.

I read this out to her and she maintained that despite this wording I can''t make an application.

I spoke to my Solicitor and asked if this was the case, and she didn''t seem to be sure. Her solution was to ask my ex for a copy of his P60 in order that I can calculate the amount accurately and go down the ''family arrangement'' route. Not surprisingly, he has refused to supply this.

Could anyone please advise me accordingly? Are the CMS right that I have to wait until next April before I can apply for Direct Payments?

Many thanks for taking the time to read this and I look forward to your responses.
x

Sorry but csa are correct the amount on consent forms stand for the year then you can apply.

Seems odd the solicitor didn''t explain this.

Hi

Thanks for your swift reply. My solicitor didn''t explain that and I naively thought that as the consent order states "until such time as child maintenance payments through the Child Maintenance Service have been arranged" that would be the case - it makes no sense to me.

Do the CMS ask to see details of consent orders when they consider applications for child maintenance?

Thanks again

They will if you make a formal application but the lady is right, you will need to wait almost certainly before cms will asses, I think you need to have a serious talk with your solicitor, unless it was a drafting service in which case they would have written exactly as you asked.

I''m not so sure about this one. The order is not expressed to last for one year, it merely applies a figure to be used in the interim until the CMS has completed the assessment.

This is a classic case of lackadaisical drafting and an unhelpful response from pen pushing civil servants.

Unfortunately the solution is not easy, you would have to write to CMS explaining the correct position supported by communications between the parties as to the intention of the clause for payment of £370 and hope that this is accepted.

Otherwise, you would have to apply to the court for Directions as to the interpretation of the order. Either way this is long-winded and may or may not succeed and will cost money to do.

Charles

Have you worked out roughly what CMS rate would be?

I know he wont supply his P60 but presumably you have some information from financial disclosure and the £370 figure was arrived at with this knowledge.

Unless the payments would be a lot more than £370 per month probably cheapest to wait at least a year.

The family arrangement route needs you both to be in agreement so if he wont agree to changes that isn''t an option.

Thanks for your replies.

The consent order was drafted by my solicitor who has 20 years of family law experience, so I am very surprised that she either didn''t realise or didn''t notice that entering a numerical value for maintenance until such time as CMS payments are arranged would fix the amount for 1 year. I am very disappointed that this is the case and would value advise as to how to handle this?

The calculation was made using my ex''s basic salary, without taking into consideration his contracted weekend work, outer London supplement or his pay protection (NHS). When this is taken into account, the amount according to the online calculator is at least another £20 per month.

Thanks again.