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Family and divorce
The world we live in has changed radically in the space of a month. Our daily movements, our social interactions and (for most of us) our financial situations have all been kicked out of kilter. As a result, many are starting to question whether the level of maintenance they pay or receive from their ex-spouse is appropriate.
If the question ‘can I vary my maintenance payments?’ is resonating with you, here is your six-step guide on what to do.
6 April 2020
1. Consider the whole family’s financial circumstances
This first step of course depends on the extent to which you know the full picture, however the idea is to ask yourself how serious the current financial position is. What are the income levels? Is there capital to provide support? If you are able to cooperate sensibly together, how can you best cope?
You may be concerned because you are the one making payments that you can now no longer afford, or you may not have needed or been entitled to support but do now need help.
2. Check your court order or agreement (if you have one)
It may be that you have a formal court order or agreement, which may have specific provisions regarding maintenance. You will need to check this. For example, there may be time limits or bars to variation. Alternatively, it is quite possible that the claim for maintenance has been finally dismissed altogether.
If you are unsure on this step, you should seek advice on the wording of your court order or agreement.
3. Ask yourself whether the problem is temporary or permanent
It may be that you have been furloughed or asked by your employer to consent to a significant reduction in wages. Perhaps you have lost your job altogether. Or are you a business owner, with a business now much reduced but that will recover? The important thing is to ask yourself is whether your situation is permanent or can you see a way back. What is the realistic timeline?
4. Mitigate the situation
Next, you should think about how best you and/or your ex-spouse can mitigate the situation. Have you exhausted all of your mitigating options? You should explore, for example, government support for employees, mortgage or other loan repayment or school fees holidays, bank support, remortgaging options or temporary employment possibilities.
5. Approach the issue
Some may find this the trickiest step. Ideally you and your ex-spouse would be able to talk directly and agree something sensible. This will require a certain element of trust. Are your circumstances such that it will be immediately apparent that the problem is genuine (e.g. your company has closed down or you have been made redundant)? Otherwise you will need to produce evidence, which may or may not be easy to do.
If you need help approaching the issue, a mediator could assist (remotely) or a solicitor could raise the issue for you in correspondence.
As a last resort, you could rely on court intervention (discussed below). The family courts are still open (although largely operating remotely), however the downside to this is that it tends to be the most expensive and time consuming option.
6. Formalise the new arrangement
Strictly speaking, any variation should really be set out in a new court order amending the original terms. That said, if it is a temporary problem and there is trust between you, then a written agreement to suspend or vary the arrangements on clearly defined terms should really be enough. Do however get it recorded somehow.
If it is a longer term arrangement and you want it to be bullet proof, then a new court order is definitely the safest option.
A few further thoughts
As mentioned above, if you have not been able to agree the variation between yourselves, you will need to issue a formal application to the court for a variation. The general principle is that you can bring an application to vary maintenance if there has been a material change in circumstances. Each case will be different and very fact specific, however the court does have wide discretion in this area.
Bear in mind that the court cannot backdate a variation beyond the date your application is filed, so do not wait too long for this if this is the route you are going down; the court does have the power to remit outstanding arrears but will not do so lightly. You may find that you can establish fairly early on that there is no scope for agreement, especially if the amounts are substantial. By going down the court route, you will need to complete detailed financial disclosure which, if you seek legal advice, will take time and incur costs, however it may be a wise investment. Therefore, be mindful of timing and press on with your application if you think you need to. You will always have the chance to continue negotiating and reach an agreement well before you get to the hearing date.
If you are in a situation where your maintenance ceases, you may need to consider enforcement. Again, you are likely to need to apply to court for this, assuming you cannot have a reasonable conversation with your ex-spouse. Bear in mind, however, that there is likely to be an element of leniency on the part of the court at the moment.
As a final point, if you pay child maintenance payments through the Child Maintenance Service, they are currently adjusting payments for any paying parents whose income has changed by 25% as a result of coronavirus. You will need to log in here to report your change.
If you are concerned about any of these issues, we are happy to provide a brief initial review of the position by way of a free 30 minute telephone call until 30 September 2020. If you would like us to do so, please set out the position in an email to firstname.lastname@example.org and one of our Family team will get back to you promptly.
6 April 2020
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