Hi Bilko,

Arrears of child maintenance which pre-date the date of signing the Trust Deed, are a provable debt and are discharged upon completion of the Trust Deed. This means they should not be included in the calculation. The relevant sections of the Bankruptcy (Scotland) Act 2016 are s145(4) and s173.

The legal position is different in England & Wales, which sometimes leads to confusion at CMS. I would recommend contacting them to query the calculation and request that they provide a new calculation, excluding the arrears. In the short term, it may be worth explaining to your ex-partner (provided you are on reasonable terms) and if you are paying her directly, restricting the payment to the amount you are due to pay as your ordinary, ongoing maintenance. I've made the assumption that CMS' calculation provides a breakdown, so this is easily obtainable information?

Your ex-partner will not receive arrears payments, but she can receive a dividend from the Trust Deed in respect of these. It will be at the same rate all other creditors are paid (e.g. 10p/£). As to who submits the claim in the Trust Deed, your Trustee should contact CMS and your ex-partner to ascertain how this is to be handled.

Nick

Hi Nick,

I appreciate your reply.

I now have a new issue, the CMS have updated my calculations and they do not include the arrears anymore so I'm now Direct Pay at my ongoing Child Maintenance payments which is great. I've explained to her and she didn't seem to have an issue.

But now, my employer has deducted the payment from my salary (due on Tuesday at time of typing) despite the CMS changing the payment method to direct pay for this month. They say they received no notification from CMS so they are going to continue to deduct it. I will if course contact CMS to see what has happened. 

Although all of the above should be pointless anyway as my Trust Deed Protection Manager spoke to my employer regarding the DEO and that it should be removed now that I'm in a Protected Trust Deed but they ignored him stating CMS supersede the Trust Deed which is of course incorrect. We never pursued it any further due to the fact my payment method changed but only now has it transpired that they are continuing with the deduction.....can my employer get into trouble by not adhering to the Trust Deed Protection team?

Hi Bilko,

That's frustrating! Without wanting to get too legislation heavy, the section to cite to your employer is 173(2) and 173(4) of the Bankruptcy (Scotland) Act 2016. They should be taking it much more seriously than your comment suggests they are (somewhat flippantly disregarding the Trust Deed).

Hopefully all is resolved swiftly