If parents care for their children exactly equally, it might seem logical that neither should have to pay child maintenance to the other.
However, the decision in OS v DT [2025] EWFC 156 (B) shows that the position is not quite that simple. The case considered an unusual feature of the child maintenance system: where care is genuinely shared equally, the Child Maintenance Service (CMS) may not have jurisdiction at all. Rather surprisingly, that can mean that the Family Court has jurisdiction instead.
So, 50/50 shared care does not necessarily mean that child maintenance is off the table.
What happened in OS v DT?
OS v DT concerned divorcing parents with three young children.
Following their separation, the parents reached an agreement through mediation that the children would spend equal time in each of their care.
This was a genuine 50/50 arrangement: the children stayed with their mother on Monday and Tuesday nights, their father on Wednesday and Thursday nights, with Fridays and weekends alternating.
As part of the parents’ financial proceedings following divorce, the court had to consider whether the father should make financial provision for the children.
This raised an interesting question. If neither parent provides less care than the other, can the CMS deal with child maintenance – and if it cannot, does that mean nobody can?
Why couldn’t the CMS deal with child maintenance?
Usually, child maintenance is dealt with by the CMS rather than the Family Court.
However, the statutory child maintenance scheme is based on there being a parent who provides day-to-day care to a lesser extent than the other.
In OS v DT, the parents’ care of the children was exactly equal. Neither parent could therefore be identified as providing less day-to-day care than the other.
The court concluded that the CMS did not have jurisdiction in those circumstances.
Importantly, this is not the same as the CMS carrying out a calculation and deciding that the amount payable is £0. Rather, the statutory scheme simply did not apply to this particular arrangement.
An unusual loophole: when the CMS cannot act, the Family Court can
This is where the case becomes particularly interesting.
Normally, where the CMS has jurisdiction, the Family Court’s ability to make its own child maintenance order is restricted. This avoids having two different systems dealing with the same issue.
However, OS v DT exposed something of an unusual loophole.
Because the parents provided exactly equal care, the CMS did not have jurisdiction. But because the CMS had no jurisdiction, the usual restriction on the Family Court’s powers did not apply either.
The Family Court was therefore able to step in and consider whether child maintenance should be ordered.
Put simply, the position can appear slightly counterintuitive:
Where one parent provides more care than the other, child maintenance will ordinarily be dealt with by the CMS. Where care is genuinely and exactly equal, the CMS may have no jurisdiction – but that can open the door for the Family Court to consider maintenance instead.
The judge also confirmed that a parent does not first have to make a futile application to the CMS simply to obtain confirmation that it cannot deal with the case.
Does that mean child maintenance will be ordered in every 50/50 case?
No.
There is an important distinction between the court having jurisdiction to consider child maintenance and deciding that maintenance should actually be paid.
The Family Court having jurisdiction does not mean that one parent will automatically be ordered to make monthly payments to the other simply because they earn more.
The court must consider the particular circumstances of the family and decide what, if any, financial provision is appropriate.
OS v DT itself is a good example of this.
What did the court actually order in OS v DT?
Despite deciding that it had jurisdiction, the court did not order the father to pay ongoing monthly child maintenance to the mother.
Both parents were providing exactly half of the children’s care and both were leaving the financial proceedings with substantial assets. The father was also shortly due to be made redundant.
However, there remained a significant difference between their wider financial positions. The father had greater non-matrimonial wealth and a higher earning capacity.
The court therefore decided that he should meet 75% of the children’s school fees, with the mother paying the remaining 25%.
The case therefore demonstrates that equal care does not necessarily mean that every expense relating to the children must also be divided equally.
Is 50/50 overnight care enough?
Not necessarily.
There is an important distinction between a child spending an equal number of nights with each parent and the parents genuinely providing equal day-to-day care.
The decision in OS v DT concerned an established arrangement in which the parents’ care was exactly equal.
Each family’s arrangements therefore need to be considered on their own facts. Simply counting overnight stays may not provide the complete picture.
What does OS v DT mean for separated parents?
The key message is that 50/50 shared care does not automatically mean that child maintenance cannot be paid.
Where one parent provides more day-to-day care than the other, child maintenance will ordinarily fall within the CMS regime.
However, where parents genuinely provide exactly equal care, the CMS may not have jurisdiction. Somewhat unusually, that can result in the Family Court having jurisdiction instead, allowing it to consider whether financial provision for the children should be made.
OS v DT also shows why it is important to distinguish between jurisdiction and outcome. The court having the power to order child maintenance does not mean that it necessarily will.
If you share the care of your children equally and are unsure how this affects child maintenance, our specialist family law advice can help establish whether the CMS or the Family Court is the appropriate route and what financial provision may be relevant in your circumstances.
