Cambridge Family Law Practice

Child maintenance payments can be ordered by the family courts when separated parents share care arrangements equally, a High Court judge has ruled.

In OS v DT, a couple had been together for 15 years, initially cohabiting for five years before marrying in 2014. They had three children and enjoyed significant levels of success in the finance sector, accumulating wealth of more than £9 million. The husband earned an annual salary of more than £1 million from his work as a department head, meaning he earned sufficiently to open the court’s jurisdiction to make orders about child maintenance, rather than it being limited to the Child Maintenance Service, regardless of the split of childcare. It was a factor of the case, however, that by the time the couple separated in 2023 he had begun discussing plans for voluntary redundancy with his employer. He had no plans to undertake similarly high paid work once this process was complete. The wife worked helping children with special needs, after having left her own job in the finance sector.

After the separation, the wife moved into a rented property, and the estranged couple agreed to share care of their children on an equal basis.

During the subsequent finance proceedings upon divorce, His Honour Judge Hess applied the principle that matrimonial property (i.e. assets and wealth accumulated during the marriage) should be divided equally. As a result, some assets were excluded from the settlement, such as bonus payments received by the husband after the couple had split.

The wife was awarded £3.4 million, plus pension funds, and there was to be a ‘clean break’, i.e. neither party was to pay spousal maintenance to the other. The husband was required to pay the children’s school fees, but Judge Hess refused the wife’s request for ‘child periodical payments’ (i.e. child maintenance) due to the specific facts in the case.

Judge Hess explained that:

“…I have considered whether I should in fact make one in the context of a case where the parties will have a reasonable level of capital to meet their needs, where the parties will be taking on an exactly equal burden of child-care and, in particular, where the husband will shortly be redundant and have little or no earned income. I have decided in the circumstances that it is not appropriate for me, at this stage anyway, to make child periodical payments orders in favour of the wife which she seeks or at all.”

He noted that financial assessments by the Child Maintenance Service cannot be made unless one parent provides a greater level of day-to-care childcare. The family court had the necessary legal authority (jurisdiction) to order child periodical payments, he noted, but whether or not they were appropriate depended on each family’s circumstances.

Kathryn Evans, one of the partners here at Cambridge Family Law Practice said: “In this useful ruling, Judge Hess sets out the legal principles that arise in respect of financial support when separated parents agree to share care of their children equally. Traditional legal frameworks have assumed that one parent would take on most day-to-day childcare, but social expectations and norms are changing, and family law must follow.”

Read the full judgment here.