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Family Law

The leading authority on all aspects of family law

20 DEC 2012

The Child Maintenance and Other Payments Act 2008 (Commencement No. 10 and Transitional Provisions) Order 2012

This Order may be cited as the Child Maintenance and Other Payments Act 2008 (Commencement No. 10 and Transitional Provisions) Order 2012. Please see Statutory Instrument below for full details of commencement dates.

This Order brings into force provisions of the Child Maintenance and Other Payments Act 2008 (c. 6) ("the 2008 Act") for the purpose of applying new rules for calculating child support maintenance to certain types of cases. It also brings into force a number of other provisions in the 2008 Act for the purposes of all cases.

The 2008 Act amends the statutory scheme for calculation, collection and enforcement of child support maintenance, as originally set out in the Child Support Act 1991 (c. 48) ("the 1991 Act") and amended by the Child Support, Pensions and Social Security Act 2000 (c. 19) ("the 2000 Act"). The amendments made by the 2000 Act were brought into force by the Child Support, Pensions and Social Security Act 2000 (Commencement No.12) Order 2003 (S.I. 2003/192) for new applications after 3rd March 2003 and for existing cases related to such applications.

However, the original provisions of the 1991 Act remained in force for a substantial number of cases, effectively resulting in two separate schemes. The 2008 Act makes further amendments to the rules for calculating child support maintenance. These provisions together constitute a third scheme ("the new calculation rules") and will apply to certain applications made on or after 10th December 2012 and certain cases linked to those applications.

Article 2 brings into force the majority of the amendments made to the calculation rules on 10th December 2012 for the purposes of certain types of cases, which are set out in article 3. The cases to which the new calculation rules will apply are those new applications made on or after 10th December 2012 which relate to at least four qualifying children with both the same person with care and non-resident parent, where there is no existing case with the same person with care and the same non-resident parent. For the purposes of considering whether there is an existing case, article 3(5) makes provision so that any case voluntarily closed in the thirteen weeks preceding the new application will still be considered an existing case and prevent the new calculation rules applying.

The new calculation rules will also apply to any existing case in which the non-resident parent named in the new application is also the non-resident parent and there is a different parent with care (article 3(3)). Also, the new calculation rules will apply to any existing case in which the nonresident parent is the partner of a non-resident parent named in a new application, and either of those non-resident parents claims a prescribed benefit (article 3(4)). Article 5 makes transitional provision so that the new calculation rules only apply to the existing case from the date the calculation made in response to the new application takes effect.

Article 4(a) brings into force sections 32 and 33 of the 2008 Act, as far as they are not already in force, on 10th December 2012. These provisions allow the Secretary of State to accept part payment in full and final satisfaction of child support maintenance liability and to write off arrears in accordance with regulations.

Article 4(b) brings section 42 of the 2008 Act, which inserts a new meaning of the word "child" into the 1991 Act, into force, as far as it is not already in force, on 10th December 2012.

Article 6 makes transitional provision in relation to the maintenance calculation. During the period beginning on 10th December and ending when the new scheme rules are commenced for all purposes, two provisions of the Child Support Maintenance Calculation Regulations 2012 need to be read as if additional words were inserted. This allows a non-resident parent's gross weekly income to be calculated on the basis of his current income if HMRC are for any reason unable to provide historic income information in relation to the non-resident parent.

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