Why Informal Child Maintenance Arrangements Can Create Serious Legal and Financial Problems
What is the issue?
Many separated parents rely on informal child maintenance arrangements, often based on trust, goodwill, or verbal agreement. While this may work initially, informal arrangements offer no legal protection if circumstances change.
Without a formal child maintenance framework in place, one parent may:
- stop paying altogether
- reduce payments unilaterally
- make inconsistent payments
- later deny any agreement ever existed
This can leave the receiving parent financially exposed and the paying parent at risk of unexpected, backdated claims or enforcement action.
This is one of the most misunderstood areas of family law—particularly because child maintenance is governed by a different legal regime from divorce finances.
Statutory Basis
Child maintenance is primarily governed by:
- Child Support Act 1991
- Child Maintenance Service (CMS) scheme
Under the Act:
- The CMS has exclusive jurisdiction over most child maintenance claims
- The court’s powers are limited, except in specific circumstances (e.g. school fees, top-up maintenance, or where CMS does not apply)
Importantly:
- Verbal or informal arrangements are not legally binding
- Only CMS-assessed maintenance or court-approved orders (in limited cases) are enforceable
Why Informal Arrangements Are Risky
Failing to formalise child maintenance can lead to:
- Loss of Financial Stability
- Payments may stop with no warning
- You may have no immediate enforcement options
- Inability to Recover Missed Payments
- CMS generally cannot backdate claims beyond a limited period
- Years of unpaid maintenance may be unrecoverable
- Sudden CMS Applications
- One parent may apply to CMS at any time
- This can result in:
- higher assessed payments
- arrears
- enforcement action (e.g. deductions from earnings)
- Disputes Over What Was “Agreed”
- Informal arrangements are difficult to evidence
- Disputes often escalate quickly, damaging co-parenting relationships
Relevant Case Law
Phillips v Peace [1996] 2 FLR 230
This case is frequently cited for confirming the limits of the court’s jurisdiction in child maintenance matters once the statutory child support scheme applies.
Key points from the case:
- The parents had made private arrangements for child maintenance.
- One parent later sought to rely on the court to enforce or vary those arrangements.
- The court confirmed that, where the Child Support Act 1991 applies, child maintenance falls within the exclusive jurisdiction of the statutory scheme (now the Child Maintenance Service).
- Informal or private agreements cannot be enforced by the court unless they fall within a recognised exception.
Why this matters:
- Even where parents genuinely believe they have a binding agreement, the court may have no power to enforce it.
- This reinforces the risk of relying on informal child maintenance arrangements without CMS involvement.
- It highlights that goodwill agreements offer no long-term legal security if circumstances change.
This case underlines a crucial principle in family law: Good intentions do not create enforceable child maintenance rights.
Practical Illustration
Scenario:
James and Laura separate in 2020.
They agree informally that James will pay £400 per month for their two children.
By 2023:
- Payments become irregular
- James reduces payments without discussion
- Laura struggles financially
In 2024:
- Laura applies to the CMS
- CMS calculates maintenance at £650 per month
- Payments only start from the application date
- Laura cannot recover most of the unpaid maintenance from previous years
Had Laura applied to CMS earlier or formalised the arrangement, she could have avoided years of financial insecurity.
When Court Orders Can Apply
Although CMS usually has jurisdiction, the court can still make orders for:
- School fees
- Top-up maintenance (where the paying parent earns over the CMS income cap)
- Lump sum payments (e.g. housing costs)
- Disabled child expenses
These are governed by Schedule 1 of the Children Act 1989 and require specialist legal advice.
Key Steps to Protect Yourself
- Consider using the Child Maintenance Service
- Provides a clear calculation
- Payments are enforceable
- Document any private arrangement
- While not binding, written records may assist later
- Review arrangements regularly
- CMS assessments can be updated if income changes
- Get legal advice for high-income or complex cases
- Court applications may still be appropriate
- Act early
- Delay can mean lost maintenance you can never recover
Checks to Make Before Relying on an Informal Arrangement
Ask yourself:
- What happens if payments stop tomorrow?
- Can I afford a gap in maintenance?
- Is the other parent’s income likely to increase?
- Would CMS assess a higher amount?
- Do I need protection for school fees or housing costs?
If the answer raises concern, informal arrangements may not be enough.
Frequently Asked Questions
Are informal child maintenance agreements legally binding?
No. They are not enforceable unless replaced by CMS involvement or a valid court order.
Can CMS backdate maintenance?
Only to a limited extent - usually from the date of application, not separation.
Can we agree an amount higher than CMS?
Yes, but enforcement is an issue unless CMS is involved.
Can the court order child maintenance instead of CMS?
Only in specific situations, such as top-up maintenance or school fees.
Does remarriage affect child maintenance?
No. Child maintenance obligations continue regardless of remarriage.
Conclusion
Relying on informal child maintenance arrangements may feel cooperative and straightforward, but it carries significant legal and financial risk.
Formalising child maintenance provides:
- certainty
- enforceability
- protection for children
- reduced conflict
If you are separating, renegotiating arrangements, or struggling with unpaid maintenance, seeking advice from a family law professional can prevent long-term financial harm and unnecessary disputes.
This article is provided for general information purposes only and does not constitute legal advice. It is intended to give an overview of issues relating to informal child maintenance arrangements under the law of England and Wales as at the date of publication.
Zubair Dharamsi Gowsigan Gnanakumaran Maisa Riazi
Partner Solicitor Trainee Solicitor
zd@roselegal.co.uk gg@roselegal.co.uk mr@roselegal.co.uk
