Étiquette : droit comparé

Comparative Law and Practices in Child Maintenance


By Jean-Claude Bardout

I – Guidelines are common in the world to help judges or administrations to determine child support amounts

The use of guidelines is common and mandatory in a great number of countries: Norway, Finland, Sweden, The Netherlands, Great-Britain, Canada, The USA, Australia, New-Zealand… It is also common practice in some others : Germany, Belgium and Switzerland.


There are no mandatory guidelines in Belgium, nevertheless many judges make use of a method established by Roland Renard 2 in 1986, based on the data of the Belgian Institute of statistics. Computed by Pierre Wustefeld 3, judge, in 1990, this method was diffused by the Belgian family court judges, even in France. This table inspired the proposition of a Bill written by Messrs. Wathelet and Viseur, deputies from the House of Representatives of Belgium (Chambre des représentants de Belgique), the 19th may 2004, stating that “the King determines the ratio of proportionality to apply to the total incomes depending on the number of the children and their age”.


There are no mandatory guidelines in Switzerland. However, since 1974, the Zurich cantonal board of Youth (Office cantonal de la jeunesse de Zurich) has recommended some guidelines for this aim. The Zurich guidelines (tabelles zurichoises) are used in several counties (cantons), but the amounts are reduced from 25% in Fribourg to 30 % in Valais 4. In the Canton de Vaud, or in Jura and Bern, the method of percentage is applied : for example 15 % of the debtor’s income for one child in the Canton de Vaud (17% in Bern), 25 % for two children (27 % in Bern) and 30 % for three children (35% in Bern). In fact, according to a Swiss judge: « there are almost as many methods to calculate a contribution as there are judges »5.


Guidelines are commonly used in many Northern European countries. In Norway, a table has existed since 1989, in line with the methods applied in Russia and in other states from the North of Europe: a percentage of the debtor’s income (one child: 11 %; two children: 18 %; three children: 24 %; four children or more: 28 %). A more elaborated formula was adopted in 2001. In case of discord between the parents, the child maintenance amount is administratively established by the local social services office.


Parents may agree on the amount of maintenance. In case of litigation, this amount is established by an administrative body according to a value of reference published by circular letter from the Ministry of Social services.


The Court of Düsseldorf brought out guidelines named “Düsseldorfer Tabbelle6. These guidelines, regularly updated, don’t need to be promulgated by the Parliament to be a standard in the German courts. They are based on the common situation of a single-parent family with two children. Their adaptation to other cases is left to the judges’ discretion in relation to the recommendations (Anmerkungen) added to the table. The Court of Berlin elaborated their own guidelines in compliance with the economical situation of east ex-Laanders.

In addition, since 1998, the German civil code prescribed that the Child maintenance amount can be rendered in a percentage of a reference amount (“Prozentsatz des jeweiligen Mindestunterhalts”) depending on the age of the children and the parents income. The ministry of Justice enacted such a table of references for the first time in July 1998. These references are updated every two years by statute, which cause the automatic revision of the maintenance fixed by previous judgements. These guidelines give six rates depending on the ex-Laänders and the children’s age. If the pension which is reclaimed is below or equal to one and a half the basic rate, the amount depends on a simplified written procedure, without the intervention of a judge.


The federal guidelines for the calculation of child maintenance were modified in May 2006, with an update of the federal tables. The amount of the pensions is established according to a percentage of the debtor’s income after tax. A study carried out in Quebec before the adoption of the table considered that amounts varied, at a level of equal income, up to double the standard amount according to the jurisdictions. Certain territories or provinces have their own guidelines, such as Manitoba, New-Brunswick and Québec7. The Québec method was revised in may ‘978.

The United-States

Before the application of the guidelines, a study concluded that it is impossible to give a rational explanation for the differences noticed in the amounts set by the judges (the amount varied from 6 to 41 % of the debtor’s income for one child). This is one of the reasons which led to the promulgation of the Uniform interstate Family Support Act in 1988. The others motives were: the will to reduce the outstanding payments and to tackle poverty in single-parent families9.

The Family Support Act incited the states to enact guidelines, while leaving them free as to the method and procedure. This generated a great emulation which boosted the development of theoretical studies about the method and provoked heated debates.

These tables are of legislative or administrative origin or promulgated by the supreme court of the State. They may be criticised before the court. They generate some judicial counter-expertises and case law. The diversity also exists in the proceedings: exclusively judicial or administrative but with an appeal before a judge.


Australia benefits from twenty years of experience in this matter because its first formulae was enacted in 1988 and worked on the principle of a percentage of the debtor’s income. The child support is determined by an administrative body, the Child Support Agency.

Its decisions are subject to an appeal before a court, the Social Security Appeals Tribunal10. The Australian guidelines were amended in 2006, after a series of economical and methodological studies. Henceforth, the formulae also take into account the time the non resident parent shares with the children; it recommends a lesser proportion for high incomes.


The 1991 Child Support Act entrusted an administrative body, The Inland Revenue Child Support, to determine the amount of the child maintenance in accordance with The Child support formula. The contribution is calculated according to the paying parent’s gross income, reduced by a statutory fixed amount for the living allowance, multiplied by a proportion which varies depending the number of children: one child; 18 %; two children: 12 %; three children: 9 %, etc. The percentages vary in case of split custody or care sharing.

Great Britain

The 1991 Child Support Act created four distinct formulas depending on the level of the paying parent’s income, applicable to parents who ask for the Child Support Agency services. This agency, in charge of the calculation, collection and redistribution of the pensions, was exceeded by its success. The agency accumulated so many delays that a complete overhaul of all this system was decided in 2005, the first applications of which came into force at the beginning of 2008. Meanwhile, a reform of tables had been adopted in 2003.

The reform followed several orientations: 1) to simplify the formulas; 2) to support private agreements; 3) to combine the pensions paid by the parents with the social allowances distributed by the State (the payment of child maintenance didn’t imply, as in France, the suppression of the allocation). The child support award is determined in proportion of the debtor parent’s net income, after deducting taxes, insurances and retirement subscriptions. To quote only the main formula, named Basic rate, the contribution starts at 15 % of the debtor’s revenue, for one child; 10 % per child, if there are two children; 8,3 % per child for three children or more.

II – To tackle the problems shared all over the world to determine the amount of child maintenance, the solutions are often quite similar

1) How to estimate the cost of a child?

The first stage in determining the parental contribution is to estimate the child’s needs, which means a cost. The guidelines are set on statistical studies of the child’s everyday living cost and the household budgets. A method prevails for that purpose: the method of the consumer units11. Indeed, the formula of the average household budget, which (contrary to the former) aggregate all the expenses appropriates to bringing up a child, determines only a standard or an ideal; it doesn’t determine what the contribution of a parent in a specific case should be.

This is why, whatever the method used to calculated the contribution of each parent, the method used to calculate the cost of the child is always that of the consumer units. This method also tends to define a decreased percentage depending on the number of the children. Almost all guidelines and formulas studied determine, all other factors being the same, an amount per capita which is lessened while the number of children in care increases. The saving’s scales explain that result. If this is not the case, as in the Düsseldörfer Tabelle which is applied for a family with two children, the judge must adapt the recommended amount to the case.

2) How to determine the parental contribution?

The answer to that question cannot be given only with economical data. The way guidelines are conceived also reflect a certain vision of family solidarity, or a conception of marriage and the couple, or even the mother’s and father’s roles. This is shown by the heated debates between supporters and critics for or against the Percentage of Income or the Income Shares model in the USA.

The Percentage of Income (also called model of Wisconsin, because that State was the first to apply it12) is based on a percentage of the paying parent’s income, in accordance with Van der Gaag’s research13 (…). The Income Shares Model is based on a theoretical parental contribution, shared between the two parents in order to assure the child the same proportion of parental resources as when the family was united. Therefore, thus model contains a certain moral dimension14, which enters into conflict with the economical realities of the separated family : in fact, the break-down of the parental couple induces a diminution of the standard of living, due to the duplication of expenses.

The Income Shares Model is also criticised because it would include a compensatory alimony for the custodial parent in guise of child maintenance15. This formula would blend two different institutions, the first one, focused on the solidarity between husband and wife, the second one, dedicated to the child support obligation. It also has another defect: a certain degree of complexity in its application. We lose in bureaucracy what we gain in judiciary time. However, this model also has its partisans. It is applied by around thirty States, for example Connecticut16. Let us specify that, due to mutual enrichments, in the end, each model integrate some elements of the other.

3) Does the income of the (new) partner or husband justify a reduction to the child maintenance?

The consideration of the mother’s new partner or new husband’s income, when she has child custody, was criticised because this meant that, in fact, the mother was penalised if she chose not to live alone. Finland formally abolished the provision which stated a child maintenance reduction in the case of the cohabitation of the mother (‘reduced guaranteed maintenance’ for cohabiting parents with care)17. Such a penalisation is both excluded of all formula based on a proportion of debtor’s income, as with the advisory guideline experimented in Toulouse (France).

4) What sort of expenses justify a reduction to the contribution?

This question raises much reflection. Some methods strive to list all sorts of expenses, meticulously distinguishing between deductible and non deductibles; some of which are sometimes partially retained at a certain percentage, like in Great Britain for mortgages. It results in practical complexity and, even, a rough result or unfairness. Indeed, as remarked by a Belgian judge: “deducting the rent of the house, the loans on the car and the television or the usual litany of claimed expenses”, would conduct to reduce their income while this is the element in proportion to which the parental obligation must be calculated 18.

The judge Elwood F. Melson from the Family court of Delaware formulated a method which became case-law, to resume a fair appreciation of the parental charges. According to Melson, any contribution is impossible until the debtor’s own basic needs are met; consequently, a sum is deducted from the parents income, for their Poverty self-support reserve. After that, the priority has to be given to the child’s needs until the parents meet the basic poverty level needs of the children. Finally, while the children are above the poverty level, the parents should share their additional income with their children, improving their children’s standard of living as their own standard of living improves.

Several countries have adopted the rule of the self support reserve deduction. Thus, the application of the guideline is less tedious; the contribution is fairly defined, in as far as it does not decrease depending on the unilateral expenditures made by the debtor.

In New-Zealand, the guidelines define a standard of regular expenses to be deducted from the taxable income. This standard is equivalent to the living allowance which varies depending on the marital situation of the debtor and the number of children in care.

In Quebec, the guidelines for the determination of child maintenance (Lignes directrices pour la fixation des pensions alimentaires) apply a standard deduction of $10,100 to the gross parental income, plus the deduction of the trade-unions fee, to determine the available parental income.

In Australia, the Costs of children table determines the child maintenance according to the total taxable income after deducting a standard for personal means of subsistence.

The table experienced in Toulouse (now applicable in France) recommends, similarly, the deduction of a standard corresponding to the French social benefit (Revenu de solidarité active); while advisory, this guideline allows the taking into account of special expenses.

5) Should we consider the expenses of children born from a new relationship?

Should we refuse to take into account the cost of raising children from another relationship? Most of the guidelines take these expenses into account, whether the children are born from a previous or posterior relationship, no matter the filiation. This rule is recommended by numerous tables, for example, the Indiana Guideline.

In Great Britain, when a parent must pay maintenance to several parents, the amount is calculated for all children and then divided between the parents with custody in proportion to the number of children concerned. If the paying parent has, in addition, the custody of one or more children, a percentage is deducted from his net income to take this charge into account before any calculation: 15 % of the net income is deducted for one child in care; 20 % for two children; 25 % for three children.

In Australia, the guidelines which have been in application since 2008 take into account the existence of children born from a previous union or a new one; the children who live in a recomposed family, even if they are born from different parents, should be considered equally.

In New Zealand, the self support living amount deducted from the paying parent’s taxable income increases in the case of children in their care. The percentage applied to determine the contribution for the children for which they don’t have custody is then reduced.

The guideline applied in the jurisdictions within the competence of the Court of Appeal of Toulouse19 determines the amount due for the maintenance of each child living with the other parent by retaining the percentage recommended for the total number of the debtor parent’s children, including the children for which the debtor has custody.

6) Does the child maintenance vary according to the age of the child?

The guidelines bring varied answers to this question. Roland Renard came to the conclusion of a quasi-linear evolution for the children’s needs: those of the eighteen-year-old teenager were almost double those of the child under one. Nevertheless, this observation wasn’t confirmed by the recent research from the University of Liège, which concluded in a steady cost from 0 to 11 years old and an increase at the age of adolescence20.

The Swiss « Tabelles » from the Zurich cantonal board of Youth include two caesuras, the first at 6-7 years old, the other at 12-13. The guidelines established by the Court of Düsseldorf conclude to three caesuras: 0 to 6 years old; 7 to 12; 13 to 18; above 18.

In Australia, the caesura is set at 12-13. It is stated that teenagers will generate higher costs than children. However, considering the fact that the families are often composed by children under and above 13, the guidelines recommend average set percentages in this case.

The French guideline holds this last solution: a uniform proportion whatever the ages, which has the advantage of not discriminating siblings and avoids repetitive submissions of the same case before the judge.

7) Can the parent who receives the child at home reduce his own expenses?

The will to protect the relations between the child and the two parents brought several countries to amend their guidelines to take into account the non custodial parent’s contribution in kind. The question was subject to specific studies in Australia21.

Confronted with the breakdown of the relations between many fathers and their children, Australia took diverse measures to try to reverse this tendency. The consideration of the expenses assumed by the fathers when the children are staying overnight is one of them.

Fathers are financially encouraged to have their children to stay with them. The child support amount is corrected depending on the time spent with each parent.

A specific table (Table B: Shared Care) determines the percentage of the child maintenance in kind which is presumed to be given depending on the number of nights spent with the non custodial parent during the year (up to 51 nights: 0%; 52 to 126 nights: 24%; for each night beyond the 127th: 25 % + 0.5 %; 127 to 175 nights: 40%; 176 et 182 nights: 50 %).

In Indiana, the Child Support Rules And Guidelines make provision for the child maintenance in kind by applying a Parenting Time Credit. The custodial Parent doesn’t benefit from any reduction if the nights with care are less than 52.

Beyond this level, the Indiana method considers that 50 % of costs are duplicated between the two parents; consequently there is no reduction for the parent with main care; the cost sharing only concerns the remaining 50 %.

An American case law should be quoted on this subject. In the Sweat v. Sweat decision, a mother, divorced in 1998, contested the contribution which she had to pay to the father who had the main care of their three children.

The contribution was set according to Georgia’s Child Support Guidelines applicable in this state, at a total amount of 25 to 32 % (for three children) of the non custodial parents’ income.

The mother contested this amount, set by the Child Support Agency, and asked for his annulment. Atkinson Court judged22 that these guidelines didn’t meet the constitutional requirements of equality, non gender discrimination, property rights, lawfulness etc. because the mother was obliged to pay a contribution which was beyond her means, surpassed the basic needs of the child and didn’t take her contribution in kind into account.

The Court however recognised that the principle of the guidelines met a legitimate governmental objective, namely to give a rational base to the calculation of the respective contribution of each parent.

In Wisconsin, the Shared-Placement guidelines apply to the debtor who cares of the child 92 days or more. In Delaware, the 2006 revised guideline include a Parenting Time Adjustment23 to reduce the contribution depending to the number of nights the child live with the non custodial parent.

Number of nights

< 110





> 174


0 %

10 %

20 %

30 %

40 %

50 %

In Quebec, if a non custodial parent (« le parent visiteur ») has their children from 20 to 40 % of the time, the child maintenance amount has to be shared in the same proportion. If the child stays between 40 and 60% of the time, this is called “résidence alternée” (split custody).

Roland Renard’s Belgian guideline incorporates the part of expenses in kind spent by the non custodial parent who has his children at home. Thus, the child maintenance takes both the shape of an amount paid to the parent with main care and of maintenance in kind.

The British guidelines reduced the child maintenance in the case of the paying parent taking care of their child at least one night a week (or 52 nights a year).

In this case, named Shared care, the child maintenance is reduced by 1/7. If the non custodial parent takes care of the child two nights a week, the child maintenance would be reduced by 2/7. If the care is shared equally, the contribution is reduced to half of the amount plus £7 per week and per child.

In New Zealand, when the child stays 146 nights or more (at least 40 %) with the non custodial parent, the child maintenance is reduced from 33 % for one child, 25 % for two children, 22 % for three children, 20 % for four children etc.

Thus, we notice a similar principle whatever the variety of the methods employed (also applied in the French guideline). The cost of caring for the child during the visiting time by the non custodial parent is not ignored.

8) What to do in case of insolvency?

Should the poor parent be relieved of paying any child maintenance?

In Great Britain, specific rules were applied for parents with low incomes. If the paying parent receives less than £5 a week is a student, in jail or in hospital, he is exempt of any payment.

If he receives between £5 and £100 a week, he owes a standard sum of £5. This amount is deducted from his social benefits (Jobseeker’s Allowance, Employment and Support Allowance).

In Australia, each parent owes a $6 minimum per week. Coordination is established between the social allowance and the child maintenance obligation.

In New Zealand, the minimum is $14, 40 a week. It is frequent that a token amount is claimed from the non custodial parent so as not to exclude him from family liabilities.

The social Benefits and the child maintenance are often combined to avoid threshold effects. Great Britain reformed its system in this way: the parent with care is allowed to keep the first £20 a week of child maintenance paid, in order not to discourage the involvement of the parent with modest income.

9) What to do in case of a totally or partially false declaration, or silence?

A guideline is of no use if incomes are not declared.

In Great Britain, the parent who does not justify his resources will be subject to a Default maintenance decision. They will, temporarily, have to pay a weekly standard amount of £30 for one child, £40 for two children, and £50 for three children. If the debtor later proves his income, a new decision is made, without retroactive effect.

In Australia, the parent who deliberately minimises their income or declares an income manifestly lower than they really have must pay a set amount of $20 per week and per child until they prove the reality of their revenue.

What to do in case of false or apparently incomplete statements24? In Indiana, the judge takes the potential income, the work history, and the parent’s average salary in the past into account to determine the level of the debtor’s potential income.

In Great Britain, if the debtor’s lifestyle betrays an income apparently superior to that declared, the agency is allowed to deviate from the table. Furthermore, the law prescribes a £1,000 fine in the case of a false statement.

10) The guidelines and the judge’s discretion

The existence of guidelines does not seem bound to a procedural choice, because they are, according to the countries, applied by the administration, the judge or the parents themselves.

The tables and guidelines seem to encourage agreements by mutual consent, even if differences remain in the way these agreements are enforced. In the absence of such agreements, the amounts will be set either by an administration, or by a judge.

In Great Britain, Australia, New Zealand, Norway, and in some states in the United States, the task of determining the child maintenance is given to an administrative agency: the Child Support Agency in Great Britain and in Australia; the Stasamt in Denmark; and the Inland Revenue Child Support in New Zealand. However, even when the amounts are set by an administrative agency, these decisions can be revised in appeal before a judge.

In Great-Britain the parent has the right to ask the Child Support Agency for a revision of its decision and can also appeal against the decision before the Tribunal Services.

The enforcement against the debtor may be disputed before a magistrate’s court in England and Wales and a sheriff court in Scotland. The parents have the right to call upon a magistrate’s court when the income of the debtor parent exceeds £2,000 per week or demand approval of mutual agreement, possibly drawn up with the assistance of the Child support service.

Contrary to France where the competence of all family disputes are given to the same jurisdiction: the family judge (juge aux affaires familiales), the British system does not avoid the dispersal of the procedures.

In Austria, Germany, Belgium, Sweden, Canada, and in some American states, the courts have jurisdiction, even in the first instance. Even when a guideline is mandatory, the judge has the power to deviate from it.

In the United States, the amounts recommended by the table are rebuttable presumption. The judge can deviate from the table, by written finding.

In Canada, the judge has to deviate from the table when its application would cause an inequitable or inappropriate result. In Australia, the decisions of the Child Support Agency may be appealed before a specialised court, the Social Security Appeals Tribunal.

In New Zealand, the child maintenance set by the administration can be revised by an independent mediator (review officer), then argued before the Family Court.

As we can see, the possibility of deviating from the recommended amount is a constant rule, even if it takes diverse forms. When the amount of child maintenance is set exclusively by an administrative body, like in England and Wales, the guidelines allow some variations, for example to take extra costs into account, like the costs of keeping in contact with the children if the parent with care has moved a long way away, for boarding-school fees, or for supporting children if they have disabilities.

Deviation from the formula can also be justified when: repaying a debt contracted before the separation from the parent with care if it is for the benefit of the family or paying the mortgage on the home if the children still live in the house. When determination of the child maintenance is to be set by the judge, he can always deviate from the guidelines.

In summary, to adapt the guideline to specific cases the most generalised means remains the appeal to the judge. The sovereign power of the judge is not the antithesis of the method but the guarantee that it is applied correctly25.


The study of the guidelines applied all over the world is full of lessons. To answer the challenge of the determination of fair child maintenance when the parents lived separately, several solutions have been looked for and tried out.

Some of them showed their utility, like the methods which allowed the estimation of the cost of the child and defined a fair contribution from the non-custodial parent. Others alert us of the stumbling blocks to avoid: the first one consists of wanting to elaborate a sophisticated formula, with the ambition to apprehend the totality of the reality. The guideline must be simple, easy to understand and use.

The parents must be able to refer to or discuss it. Their lawyers should have the possibility of using it to reach a private agreement, to plead for a deviation. The judge must use his discretion.

1 The original version was edited in French by Juris-Classeur-Lexis Nexis in Droit de la famille, mars 2010, dossier 2. The English translation was supervised by Stephanie Bean

2 La méthode Renard aux portes de la loi, Actes du colloque du 11 décembre 2008, éditions Larcier, Bruxelles, 2009, 123 p.

3 RENARD Roland, WUSTEFELD Pierre-André, SERRA Raoul, Proposition de contribution alimentaire, Méthode Renard pondérée et informatisée, Louvain la Neuve, 2002

4 Recours contre un arrêt du Tribunal civil de la Gruyère du 17 février 2009, cf. http://jumpcgi.bger.ch/cgi-bin/JumpCGI?id=14.07.2009_5A_216/2009

5 Propos attribué à Françoise Bastons Bulletti, présidente du Tribunal de la Sarine, Suisse

6 http://www.olg-duesseldorf.nrw.de/

7 Le modèle québécois de fixation des pensions alimentaires pour enfants, Ministère de la Justice Québec, 2006, 14p.

8 La table de fixation de la contribution alimentaire parentale de base du Québec après la réforme du 1er mai 2007 :


9 GARFINKEL Irwin, Assuring Child Support, An extension of Social Security, Russel Sage Foundation, New York, 1992

10 Reforming Australia’s Child Support Scheme, Summary Report of the Ministerial Taskforce on Child Support, Australia

11 cf. Cécile Bourreau-Dubois, Analyse économique, in Une table de référence pour fixer le montant de la contribution aux frais d’éducation et d’entretien des enfants, Droit de la famille, LexisNexis JurisClasseur mars 2010

12 Guidelines for Setting Child Support Payment Amounts


13 Jacques van der Gaag, On measuring the Cost of Children, in Children and Youth Services Review, Vol 4. pp.77-109, Pergamon Press Ltd, 1982, USA

14 Basic principles, in Child Support and Arrearage Guidelines, State of Connecticut, August 1, 2005, p. ii

15 JOHNSTON James R., The Father of today’s child support public policy, his personal exploitation of the system and the fallacy of his income shares model, August 1998

16 Child Support and Arrearage Guidelines, State of Connecticut, Commission for Child support guidelines, Effective August 1, 2005

17 Recent Trends in Child Maintenance Schemes in 14 Countries, Christine SKINNER and Jacqueline DAVIDSON, International Journal of Law, Policy and the Family, Vol. 23, No. 1,[2009]. Published by Oxford University Press.

18 L’argent et la famille disloquée, une méthode de calcul des contributions alimentaires des père et mère au profit de leur enfant, août 2003, 19p.

19 applicable in France since the 12 April 2010

20 E. Bonsang, M-T Castaman, G. Gérin, P. Pestieau, Les contributions alimentaires pour les enfants, Université de Liège, 31 janvier 2007

21 HENMAN Paul, MITCHELL Kyle, Estimating the Cost of Contact for Non-resident Parents : A Budget Standards Approach, Jnl Soc. Pol, 30, 3, 495-520, United Kingdom, 2001 Cambridge University Press

HENMAN Paul, Updated Costs of Children Using Australian Budget Standards, University of Queensland, May 2005

22 Sweat v. Sweat, Superior Court of Atkinson County, State of Georgia, 25 février 2002

23 The Family Court of The State of Delaware, Delaware Child Support Formula, Evaluation and Update, October 2, 2006

24 a EU study (July 2nd, 2004) estimated the undeclared work (criminal activity and domestic work excluded) between 7 to 16 % of the EU’s GDP.

25 Jean-Claude BARDOUT, Les conditions procédurales de l’utilisation de barèmes, in Actualités Juridique Famille, Dalloz, novembre 2007