Are you worried about meeting your child or spousal maintenance payments during the Coronavirus pandemic? This is a very real concern for parents that have been furloughed, or have lost income during the lockdown. This article sets out the options for parents who are unable to pay some or all of their maintenance obligations.
As the coronavirus pandemic continues to affect our lives in ways that previously seemed unthinkable, your financial position may have changed.
If you currently pay child or spousal maintenance, you may find yourself in a situation where coronavirus has impacted your income. It is important to consider how your ability to pay this maintenance may be affected and what steps you can take in order to ease this burden.
Can my Maintenance Order be varied?
The standard position for financial orders is that once approved and sealed by the court, they are final and binding. However, certain paragraphs of an order do remain variable:
- Maintenance orders can be varied up or down. Also, the length of time for which they are in force can be increased or reduced.
- Lump sum payments by instalments can be varied as above.
- Orders for sale of an asset (whether it is a property or shares).
In most circumstances' capital payments (e.g. lump sum payments) are not variable, unless something unforeseen and unforeseeable has occurred. This is known as Barder event following the case of Barder v Barder (1987).
I want to vary the amount of maintenance I am paying – what are my options?
If you are struggling to pay maintenance, it is important that you do not simply stop the payments as this will put you in breach of your court order and at risk of enforcement proceedings. Instead, several options could be available to you.
Reach a temporary maintenance agreement
Coronavirus may have left you in a position where you no longer feel able to meet your maintenance requirements. The best solution could be to try and reach an agreement with your ex-partner to temporarily reduce the sum you are paying. When your situation then improves, you could agree to return to paying the amount ordered or increase the payments to make up for the short fall.
A solicitor will be able to advise you on what is a suitable compromise and can correspond with your ex-partner if required. If arrangements are agreed by both parties, your solicitor can draft a consent order. This will allow the agreement to be recognised by the court. If you do not wish to seek legal support, make sure you keep a record of any correspondence confirming an agreement and any paperwork which led to the agreement as this will protect you if your ex-partner were to bring future claims against you.
If you are unable to reach an agreement together, there are many other options for resolving this issue legally. You may wish to read our full article on the options for resolving financial disputes between separated couples here.
Using Arbitration to Vary Maintenance
Arbitration is another avenue that is available to couples who may not agree on the terms of varying a maintenance order. Arbitration is a private, formal and binding process where disputes are resolved by a final award made by an Arbitrator. It works in the same way as a court except that the person making the decision is someone you choose. This is usually a barrister, as opposed to a court appointed judge. The decision made is then binding although it is still necessary to lodge it as a consent order with the court. This should be a straightforward and inexpensive process.
The benefits of using arbitration are that it is quicker than going to court and this is particularly beneficial in the current climate. Arbitration is also likely to save significant legal costs. This is because there are fewer hearings than if the matter were to be played out in court.
It is important to highlight here that while a court application may seem appealing, there are several reasons why court proceedings should be seen as a last resort. Courts themselves are struggling to deal with the impacts of the coronavirus. The staff reductions it has caused mean that any application is likely to experience serious delay. Nevertheless, if your ex-partner is being unreasonable and you feel you are left with no other choice, then an application to vary maintenance can be made by lodging a Form A1 for an initial fee of £255. The usual process of providing disclosure and going to court hearings would then follow. You can read here about the main settlement hearing in the court process; the FDR (Financial Dispute Resolution) hearing. Most cases settle at this stage.
On a variation application, the court will consider a number of principles. These are proportionality, fairness and how a change in circumstances may have affected the original agreement. If you have lost your job or your income has been reduced, then this clearly acts as a change of circumstances and may mean you have grounds for variation.
If you consider that a court application is your only realistic option for change, then you must seek legal advice as soon as possible. It is important to remember that a failed application could bring further costs. This is why court should should be viewed as a last resort.
Originally published 26 April, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at email@example.com.