The impact of shared equal childcare on child maintenance payments

The recent case heard by HHJ Hess, OS vs DT has provided clarity over who has the jurisdiction to rule on child maintenance payments when parents have shared equal care.

The Child Support Act 1991 usually bars the courts from ruling on child maintenance orders where the Child Maintenance Service (CMS) has jurisdiction. Yet regulation 50 of the Child Support Maintenance Calculation Regulations 2012 creates an issue where there is equal shared care and one parent does not provide ‘less’ day-to-day care than the other. In these circumstances there is no non-resident parent, and the CMS is unable to make an assessment on child maintenance payments.

OS vs DT (2025) EWF 156 (B)

This was a high-net-worth case worth around £9 million. The couple had a long marriage and three children under the age of 10. Both parties had equal shared care of the children. During the final financial remedies hearing, HHJ Hess ruled that in these circumstances where shared care is truly equal, the court has the jurisdiction to rule on child periodic payments orders.

Moreover, when care is equally shared either party can apply direct to the court for a child periodic payments order, without making an application to the CMS first. HHJ Hess ruled that in this scenario, the court retains its power under the Matrimonial Causes Act 1973, section (1) (d).

In this specific case, both parties emerged from the proceedings with substantial capital of over £3.4 million each and both had strong earning capacity. Given this, HHJ Hess ruled that while child periodic payment orders were under the jurisdiction of the court, they were unnecessary. However, he did make a child-related order for the father to meet 75% of the children’s school fees, which reflected his greater resources and earning capacity.

What this means

This case resolves the issue of who is responsible for ruling on child maintenance issues when there is equal shared care. Under these circumstances, the forum for child maintenance disputes is the court and not the CMS, using its powers under the Matrimonial Causes Act 1973, section (1) (d).

Parties do not need a ‘nil’ assessment from the CMS to prove shared equal care before applying directly to the court for a child periodic payments order.

This may lead to more disputes regarding whether care is exactly equal as this now carries legal significance. These disputes will not just be around child welfare issues but also jurisdictional advantage.

The court can decide that no child maintenance payments are required, when both parties have sufficient income.

In high-net-worth cases, this may lead to a ‘clean break’ regarding child maintenance, with a focus instead on division of capital.

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