I am often asked whether or not parents can enter into an agreement whereby one parent will pay the other parent a lump sum amount of child maintenance “up front” and thereby be released of paying ongoing monthly child maintenance payments.

 

This arises often if one spouse wishes to retain family property (for example, the family residence) but does not have sufficient means to pay out the other spouse.

 

A separation agreement can be drafted which carefully sets out how much one parent has pre-paid and how the parents have determined that the parent is absolved of the requirement to pay future child maintenance.

 

There is however a major issue which arises and which may make the agreement unenforceable in the future and that is the fact that child maintenance is the right of the child and not of the parent. This right cannot therefore be waived by the parent on behalf of the child and the separation agreement may be set aside or varied in the future.

 

If the separation agreement was set aside it at a minimum would be evidence of the amount of child maintenance which one parent had pre-paid and this would be considered by the court.

 

Deborah A. Todd
Deborah A. Todd