A Family Law Solicitor’s Guide to Top-Up Child Maintenance

If you are a parent, you may be able to claim top-up child maintenance from your ex-spouse or former partner. These payments are in addition to any Child Maintenance Service assessed child support and any court-ordered spousal maintenance payments.

In this guide, our Northwest family law solicitors explain what top-up child maintenance is and how to apply.

Extra child maintenance can make a big difference to whether you can maintain your children’s standard of living after a family separation. While money and gadgets won’t make your child’s life easier, the extra child support may make it easier for you and your child to adjust to changed circumstances.

Consult Evolve Family Law Today.

In this guide, we cover:

What is top-up child maintenance?

The differences between CMS child support and top-up child maintenance

Key information about top-up child support

The law and top-up child maintenance

Application criteria for top-up child maintenance

Court calculation of top-up child maintenance

The Adjusted Formula Methodology for top-up child maintenance

Situations where the court won’t use the Adjusted Formula Methodology

Statutory and other criteria to determine top-up child maintenance applications

Statutory criteria for applications under the Matrimonial Causes Act 1973

Statutory criteria for top-up child maintenance under Schedule 1 of the Children Act 1989

Evidence for a top-up child maintenance application

Negotiating top-up child maintenance and financial support

Applying for top-up child maintenance

Talk to Evolve Family Law about your top-up child maintenance application

Frequently Asked Questions About Top-Up Child Support Applications

What is top-up child maintenance?

Top-up child maintenance is extra court-ordered child maintenance that’s payable in addition to a maximum Child Maintenance Service assessment.

A parent can apply to court for top-up child maintenance if the Child Maintenance Service (CMS) has made a maximum assessment.

A maximum assessment is possible where the paying parent’s income exceeds £156,000 gross per year.

The differences between CMS child support and top-up child maintenance

Child Maintenance Service child support and top-up child maintenance are different because:

• CMS assessments are calculated using a mathematical formula that doesn’t take account of the child’s needs or the paying parent’s outgoings.
• A judge assesses court-ordered top-up child maintenance. The judge exercises discretion after using case law methodology and a range of statutory criteria, including the child’s needs and both parents’ resources.  

When a child support lawyer applies for top-up child maintenance, the application and evidence will focus on:

• The child’s needs considered in light of the standard of living experienced by the child during the marriage or while spending time with the paying parent.
• The adjusted formula for considering top-up child maintenance. 
• Both parents’ respective incomes and housing and other needs. 
• The impact of any financial settlement and financial court order 

Key information about top-up child support

• The Child Maintenance Service only looks at a paying parent’s income to a maximum gross income of £3,000 a week or £156,000 a year.
• If the CMS makes a maximum child support award, a parent can ask the court for top-up child maintenance. 
• A court can order top-up maintenance on the paying parent’s income above the £156,000 cap.
• An unmarried parent can apply for top-up child maintenance under Schedule 1 of the Children Act 1989. A divorcing parent normally applies for top-up child maintenance as part of their financial settlement, but they can apply later if the paying parent’s income increases.
• Top-up child maintenance is separate from a school fees order or an order for additional child support to help cover the additional costs of a child’s disability.

The law and top-up child maintenance

Section 8(6) of the Child Support Act 1991 says that if the CMS has made a maximum assessment because the paying parent’s income exceeds the CMS threshold, the court can make a top-up child maintenance order. Unlike the CMS, the court has discretion over whether to make an order.

Three additional pieces of legislation can be relevant to a top-up child maintenance application:

1. The Matrimonial Causes Act 1973 – if you are a married parent and applying for a divorce and financial settlement. 
2. The Civil Partnership Act 2004 – if you are in a civil partnership and applying for a dissolution of civil partnership and a financial settlement. 
3. Schedule 1 of the Children Act 1989 – if you are an unmarried parent or making a freestanding application.  

Application criteria for top-up child maintenance

Whether you are making a top-up application as an unmarried parent, a freestanding application or as part of your application for a financial settlement within divorce or dissolution court proceedings, the court won’t make a top-up child support order unless you meet all four criteria:

1. Maximum assessment – the CMS must have made a maximum maintenance award.
2. Income – the paying parent’s gross income must exceed £156,000 per annum.
3. Child qualifies – your child must be under 18. If your child is in full-time education, the age limit is extended to 20.
4. Residence – your child must live with you as the applicant parent. 

Court calculation of top-up child maintenance

The court doesn’t use the CMS formula to calculate top-up child maintenance. Instead, the court bases its decision on the statutory formula and family court decisions.

Since 2023, and following the reported court case of James v Seymour [2023] EWHC 844, the family court has considered the Adjusted Formula Methodology (AFM) when assessing top-up child maintenance applications.

Unlike CMS child support calculations, which use a set formula to calculate child maintenance, the AFM is not necessarily the end point for a top-up child maintenance order. Instead, the AFM is the starting point for the family judge to use as a base, then exercise judicial discretion to increase or reduce the figure.

In addition, the AFM approach is only relevant if the paying parent earns between £156,000 and £650,000 gross per year. 

Specialist child support solicitors are adept at gathering evidence of a paying parent’s income where there is a dispute over the extent of earnings. For example, where the paying parent:

• Is self-employed
• Is suspected of diverting income 
• Has a lifestyle that is at odds with and is inconsistent with their income as reported to HMRC

The Adjusted Formula Methodology for top-up child maintenance

Where a paying parent has an income within the £156,000 to £650,000 range, the court will:

1. Look at the paying parent’s gross income from their tax return (or P60 if they only have salaried employment). 
2. Reduce the paying parent’s stated income if other children are living in the parent’s household. These children don’t need to be the biological children of the paying parent; they can be stepchildren or adopted children. The paying parent’s gross income is reduced by 11% for one child in the paying parent’s household, 14% for two children, and 16% for three or more children. 
3. Reduce the paying parent’s gross income by the amount of their pension contributions.
4. Calculate the gross figure for all child support payments paid by the paying parent. The figure should include private school fees. The net child support figure is grossed up to reflect the tax paid by the paying parent on the income used to pay child support commitments.
5. Calculate child support by using the CMS formula to the paying parent’s first £156,000 of gross income. This involves looking at the first £800 of gross income per week and calculating child support at 12% for one child, 16% for two children, and 19% for three or more children. For income between £801 and £3,000 gross per week, the rate is 9% for one child, 12% for two children, and 15% for three or more children.
6. Calculate child support for the paying parent’s remaining income up to a cap of £650,000 gross per year using reduced percentage figures of 2.4% for one child and 3% for each of two or three children. 
7. Adjust the calculated child support figure depending on the number of overnight contact visits the paying parent has by using the CMS shared parenting discounts.

Situations where the court won’t use the Adjusted Formula Methodology

The case law says that the court shouldn’t use the Adjusted Formula Methodology to calculate top-up child maintenance when:

1. The paying parent earns over £650,000 gross per annum, or
2. The paying parent’s income is predominantly based on capital assets and drawdown rather than earnings, or 
3. There are four or more children requiring child support, or
4. The application is to vary an existing child support order. 

In these situations, the court should instead examine the statutory factors in Section 25 of the Matrimonial Causes Act 1973 or Schedule 1 of the Children Act 1989, and carry out an assessment of the children’s and parent’s needs (referred to as a Household Expenditure Child Support Award assessment).

Statutory and other criteria to determine top-up child maintenance applications

If the court uses the Adjusted Formula Methodology as a starting point, you need to understand the additional court considerations for determining the level of top-up child support.

The court will consider:

1. Statutory criteria – the criteria depend on your top-up child maintenance application 
2. Household expenditure child support. 

After looking at the AFM figure, the court will assess the amount by carrying out what is known as a Household Expenditure Child Support Award assessment. This involves assessing the amount reasonably required to sustain your child at an appropriate standard of living.

When looking at the standard of living, the court can recognise that:

1. An applicant for a top-up child maintenance order may need financial assistance beyond strict child-related expenses, and 
2. The standard of living enjoyed by the child during the parental relationship and that enjoyed by the paying parent are relevant.  

Accordingly, when a child support lawyer looks at a Household Expenditure Child Support Award assessment, the outgoings on the schedule are not limited to the child’s care needs but include a reasonable proportion of general household outgoings, such as: 

1. Mortgage or rent
2. Utility bills
3. Travel costs and car expenditure
4. Holidays and leisure 

The court will also need a detailed breakdown of all child-related expenditure, such as additional monies spent on tuition fees or childcare provision.

Statutory criteria for applications under the Matrimonial Causes Act 1973

The family court also considers the statutory factors that govern a husband or wife’s application for a financial court order under Section 25 of the Matrimonial Causes Act 1973.

These Section 25 factors include:

1. The income, earning capacity, property, and financial resources of each parent. 
2. The financial needs, obligations, and responsibilities of each parent.
3. The standard of living enjoyed by the family before the marriage breakdown.
4. The ages of the parents.
5. The parents’ potential earnings capacity.
6. Any physical or mental disabilities of either parent or children
7. Any prenuptial agreement or postnuptial agreement, provided that agreement safeguards were met and the terms of the agreement meet both parties’ reasonable needs.

Statutory criteria for top-up child maintenance under Schedule 1 of the Children Act 1989

If a top-up child maintenance application is being made under Schedule 1 of the Children Act, the court will also consider:

1. the income, earning capacity, property, and financial resources available to each parent. 
2. The financial needs, obligations, and responsibilities of each parent.
3. The financial needs of the child, including the child’s living costs.
4. Any income, earning capacity, property, and financial resources of the child.
5. Any physical or mental disability of the child.
6. The manner in which the child was being, or was expected to be, educated or trained.

Evidence for a top-up child maintenance application

If you are applying for top-up child maintenance for your child, the court needs evidence and supporting financial paperwork about your former partner’s income. 

During the financial disclosure process, your solicitor can ask for additional documents and ask questions about the financial disclosure.  Because the court can exercise its discretion, use the AFM as a starting point, and consider the Household Expenditure Child Support Assessment and statutory factors, it is also important to have evidence of child-related outgoings, after factoring in the standard of living enjoyed during the relationship and the paying parent’s current lifestyle choices.

It is helpful to schedule your child’s expenses and associated costs. These can include:

• Nursery or childcare provision
• Paid care, such as a nanny 
• Extracurricular activities or sports
• Clothing 
• Equipment, such as sports or musical equipment
• Travel costs 
• Any additional healthcare expenses, such as health insurance 
• Presents 
• Pets and all associated costs such as food, pet insurance and veterinary expenses 
• School-associated expenditure, such as books and equipment 
• Any additional expenses linked to a child’s disability 

Negotiating top-up child maintenance and financial support

Most parents receiving financial support aren’t worried about whether the monthly allowance is CMS child support, top-up child maintenance, or spousal maintenance. However, some paying parents prefer to think their monthly payments are purely for their children, not their former spouse.

 When negotiating the type of monthly financial support, your financial settlement lawyer will weigh up these factors and their relevance to your situation:

1. Child support will stop when your children reach a specified age or if your children move to live with the paying parent.
2. Child support may reduce if the paying parent applies for a reduction. For example, if your children spend additional time at the paying parent’s house.
3. Spousal maintenance automatically stops if you remarry and may stop if you cohabit with a new partner.
4. Spousal maintenance may reduce if you increase your income.
5. Any child support or spousal maintenance order can be reduced if the person paying the financial support loses their income or has a change in circumstances.
6. The court may not award spousal maintenance if you are receiving the lion’s share of the equity in the family home or other assets so you have secure accommodation.

Applying for top-up child maintenance

A top-up child maintenance application involves an initial CMS application to secure a maximum award under the CMS rules, followed by an application to the family court for top-up child maintenance. This application can be combined with other applications, such as:

• A financial order under the Matrimonial Causes Act 1973 for a property adjustment order, pension sharing order, lump sum order or spousal maintenance order.
• A school fees order for the payment of private school fees.
• A lump sum order under Schedule 1 of the Children Act 1989 for monies associated with caring for a child. 
• Additional child support to cover the associated costs of caring for a child with a disability. 

When you combine several applications, it’s important to check the financial disclosure requirements and court process.

Whether you are making a freestanding or combined court application, you should consider alternative dispute resolution options. Court rules encourage negotiation before court proceedings begin. Failing to participate in ADR could cause delays, as the court may adjourn the application to allow ADR to take place.

A family lawyer can advise on the different types of alternative dispute resolution options, including:

• Family mediation 
• Arbitration
• Collaborative law 
• Solicitor negotiations

Although you may want to rule out mediation because of the power imbalance between you and your ex, or because of your former partner’s behaviour, a specialist family law solicitor can explore the different types of mediation available, including solicitor-led mediation or hybrid mediation.

Talk to Evolve Family Law about your top-up child maintenance application

Top-up child maintenance applications can be complicated, as they involve obtaining a maximum CMS assessment and a court application with a choice of statutory routes and criteria.

Respondents to financial settlement applications that include top-up child support requests will normally have complex finances involving self-employment, family businesses, offshore assets, trusts and income and capital distributions or issues over financial disclosure or asset valuations.

A specialist financial settlement solicitor can best handle a financial settlement and top-up child maintenance, with the expertise to focus on the financial disclosure needed to prove your ex-partner’s income justifies top-up child support. 

Our team of family law experts will work with you and provide the clear guidance and strategic advice you need to make your child’s childhood financially comfortable.

Consult Evolve Family Law Today. 

Our family law solicitors are based in Manchester and Holmes Chapel in Cheshire, but we advise husbands, wives, and unmarried partners across the UK, providing the specialist advice they need.

Frequently Asked Questions About Top-Up Child Support Applications

A top-up child maintenance order provides additional child maintenance payments to the Child Maintenance Service maximum award.

You can apply for a top-up child support order if a paying parent’s gross income exceeds £156,000 per year. If you are struggling to establish your ex-partner’s income, our expert family lawyers can obtain financial disclosure, analyse it and ask additional questions if you suspect that your ex is hiding assets or income.

How can I prove my ex earns over £156,000 gross a year?

A family lawyer will discuss the evidence needed to establish that your ex-partner earns over the CMS threshold for a top-up child support application.

In the court application process, the lawyers at Evolve Family Law will pursue full financial disclosure of your ex-partner’s financial circumstances to help you secure the financial settlement and top-up child support you need.

Can I apply for a top-up child maintenance order?

You can apply for a top-up child maintenance order if the CMS has made a maximum maintenance assessment. A family law solicitor can advise you on your CMS application and the additional applications you can make if you’re a married or an unmarried parent, such as housing provision for a dependent child if you weren’t married to your ex-partner.

Can an unmarried parent apply for a top-up child support order?

Yes. Unmarried or married parents can apply for top-up child maintenance orders provided the CMS has made a maximum CMS award.

An unmarried parent can also apply for additional orders, such as housing provision for their child or for property orders in their own right if they have either a legal or equitable interest in the family home or other property.

 Will the court use the CMS formula to calculate the top-up child maintenance?

No, the court will use the Adjusted Formula Methodology, needs-based approach, or statutory criteria to assess whether top-up child maintenance should be ordered and the amount. A lawyer can outline the application process and criteria to help you decide whether to apply.

Can a top-up child maintenance order include school fees?

If your child is being educated privately or you hope to enrol your child into a private school, you can ask the court to make a school fees order. If your former partner doesn’t agree with your child attending a private school, you can ask the court to make a specific issue order.

The court can make a school fees order even where the CMS hasn’t made a maximum assessment and where a parent can’t apply for top-up child maintenance.

How long will the top-up child maintenance order last?

A typical top-up child maintenance order usually lasts until your child reaches 18, or until they complete their full-time secondary education. 

In some situations, a court can extend the order. For example, if your child is in further education or has disabilities that mean they will need financial support beyond the age of 18.

How long does a top-up child maintenance application take?

Top-up child maintenance applications can take 12 months, depending on court timetables. Sometimes the process takes longer if your application is heard with your divorce financial settlement claim, or with a Schedule 1 application for housing provision or a lump sum order.

Our child maintenance solicitors will advise on alternative dispute resolution options and settlement offers, and help you resolve child support and a financial settlement by agreement.   

Can a top-up child maintenance order be changed?

Yes. You can change top-up child maintenance by agreement or court order. A top-up order can be discharged if a child moves to live with the paying parent or if the paying parent loses their job. Other circumstances may justify increasing top-up child maintenance.

Consult Evolve Family Law Today. 

Our offices are in Manchester and Holmes Chapel in Cheshire, but we provide specialist family law advice to clients from across the UK.