When parents separate, one of the most challenging and emotionally sensitive issues to resolve is how children will divide their time between two homes, and how this arrangement affects child maintenance.
These questions arise early, when families are adjusting to change and seeking stability. Understandably, many parents begin this process with worries about fairness, financial security, and whether their proposed arrangements will genuinely support their children’s wellbeing
This article explains the relationship between shared care and child maintenance, highlights a recent case that clarifies the law, and outlines how legal advice can help families navigate these decisions with confidence.
What is Equal Shared Care?
Equal shared care means that children spend the same or broadly similar amounts of time with each parent, with both parents taking an active role in day-to-day responsibilities. Importantly, equal shared care does not require a strict 50/50 split measured by overnight stays.
The law recognises that practical family life rarely fits neatly into mathematical divisions. What matters most is that arrangements meet the child’s needs, offer consistency and routine, and allow both parents to remain meaningfully involved in the child’s upbringing.
A very common misconception is that if parents share care equally, then no child maintenance is payable. This is not automatically true. The legal position is more nuanced and depends on which decision-making body, either the Child Maintenance Service or the Family Court, has jurisdiction to consider the matter.
Who Decides Child Maintenance?
Child maintenance can be determined in two ways:
1.The Child Maintenance Service (CMS)
In most situations, the CMS is responsible for calculating maintenance. It uses a statutory formula based on the paying parent’s income and the number of nights the child spends in that parent’s care.
2. The Family Court
The Court’s role is more limited. It can handle certain types of financial support, such as school fees and lump-sum payments. The CMS has primary authority for calculating routine weekly maintenance, unless specific exceptions apply.
However, one key exception is where care is truly equal. In such circumstances, the CMS may not have jurisdiction at all, and the Family Court may retain the ability to make orders instead.
What Did the Court Decide in OS v DT?
The case of OS v DT provided helpful clarification on how child maintenance should be approached where parents claim equal shared care. The Court held:
1. The CMS has no jurisdiction where care is exactly equal.
2. The Court retains the power to make child periodical payments in these cases.
3. Where equal care is in dispute, the Court can determine whether care is in fact equal and then decide if it has jurisdiction. Parents do not need to apply to the CMS first.
In OS v DT, the Judge decided that no regular child maintenance should be paid, having regard to the parents’ respective financial positions. However, the Court recognised a disparity in resources and ordered one parent to contribute a greater share of the children’s school fees. This ensured that the children’s needs were properly met without imposing unnecessary financial pressure.
This case demonstrates that even when routine maintenance is not appropriate, the Court can still make targeted financial arrangements to support a child’s wellbeing.
What This Means for You
When parents assume that equal shared care automatically extinguishes maintenance, it can often lead to unnecessary conflict. This may create disputes centred on achieving a particular number of nights, rather than focusing on what arrangement is genuinely best for the child. It can also lead to unrealistic expectations during negotiations, making it harder for parents to reach amicable agreements.
A clear understanding of the correct legal position can help parents:
• Avoid misunderstandings that lead to entrenched positions.
• Reduce conflict and avoid unrealistic expectations.
• Focus on what arrangements are genuinely best for their children
• Have clearer, more constructive negotiations
• Reach agreements that feel fair and sustainable for both families
• Maintain a more cooperative, co-parenting relationship.
How Can We Help?
At Mayo Wynne Baxter, we can help you navigate your separation by providing you with tailored advice that can help you understand:
• What a realistic shared care arrangement could look like.
• How equal (or near-equal) care may affect child maintenance.
• Whether your situation is likely to fall within CMS or Court jurisdiction.
• How child maintenance is likely to be assessed in your circumstances
Our aim is to support you in making informed decisions that reduce conflict and promote stability for your children. We provide thoughtful, tailored advice that can make a significant difference to both the process and the outcome.
If you need any assistance with a Family Law matter, please do not hesitate to contact our experienced Family Team at Mayo Wynne Baxter on 0800 84 94 101. Our specialist team can advise you as to the best possible ways to resolve matters.
Neshanga Nimalesan – Solicitor
nnimalesan@mayowynnebaxter.co.uk
