Maintenance beyond 18 years old

[Mum1223]

Hi, I am looking for some advice regarding child maintenance. I had to go through the Child Maintenance Service 5 years ago( been divorced since 2018) as my ex-husband was barely providing for my 2 sons. He does now but reluctantly and only because it goes through the CMS. My eldest son is turned 18 at the end of the August and my ex has already messaged me about monthly payment being reduced (he did not waste time !) However in the consent order from the divorce my solicitor made a point to include maintenance until the end of tertiary education (university) - I did find the section in the consent order. My question is: if the CMS can't make him pay after the child is 18, how can I make sure he will provide for his eldest son? I am kind of preparing myself that unless I go through court or solicitor, (very pricey!) he won't. My son is starting uni October and the maintenance loan won’t cover all his living cost.

As your son is 18, he can apply to the courts for maintenance himself. You cannot apply on his behalf.

CMS supercedes the court order, so you can't go back and apply the terms of the order.

There is nothing to be done to demand he makes payments to you. Hopefully he will agree to pay the difference directly to your eldest but he doesn't have to.

As I understand it, if the terms of the Order state he should pay child maintenance until 21 and post 18 he breaches this , then you can apply to the Court to enforce the term. Check the wording though because he may have aid he'd pay until their 21 but capped the opportunity to carry the Order at 18 for example
IN which case, as your son is 18 and is in full time education, he can make an application Schedule 1 (Children's Act 1989) application to the vary the Order

I'm afraid your understanding is incorrect. When you refer child maintenance to the CMS, the provisions of the consent order regarding maintenance are void and no longer enforceable. OP cannot apply to the courts to enforce the original order. The only way forward is for her son to apply for maintenance himself.

The provision for payment of maintenance to cover tertiary education is not voided by a referral to the CMS for payment under their jurisdiction (i.e. up to age 20 or end of A level equivalent qualifications whichever is first). It will depend on the exact wording in the order - but it will be enforceable, as it is already in a court order.

Otherwise, yes, the young person can make a claim in their own right - but there isn't a need if it is already detailed correctly in the financial order - it will typically say 'until the end of tertiary education (or similar wording) or until further order'.

thanks for that. So it would be up to my son to legally challenge it? However he would never do that. He will be starting at Oxford
in October and I am worried about the costs even with the maintenance loan, which won’t cover all.

HI Mum1223

As JustAnotherLawyer2 mentioned, the provision for payment of maintenance to cover tertiary education is not voided by a referral to the CMS for payment under their jurisdiction

So if the Order is breached regarding him continuing to pay maintenance while your son is in full time education then you can apply to the Court to enforce the term.

You'll know whether it is worth it (and if there isn't domestic abuse) but you may choose to write to him first setting out the situation and asking him to honour the terms of the Order to avoid having to apply to Court which will take longer.