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Coronavirus and child maintenance

Coronavirus is an increasing concern for anyone receiving either spousal or child maintenance.

The impact of coronavirus is touching on almost every part of all of our lives. With businesses having to close doors, redundancies being made and a recession looming on the horizon, many people are justifiably concerned about their income position. That is, in turn, causing increasing concern for anyone receiving either spousal or child maintenance.

What is a spousal maintenance order?

Spousal maintenance orders require a party to pay ongoing regular sums (usually on a monthly basis) to their ex-spouse. They are made when a party does not have enough income to meet their ongoing expenditure needs and the paying party has sufficient surplus income to make this affordable for them. They are generally made to last for a specific term of years but can extend for the remainder of the parties’ lives.

Can spousal maintenance orders be changed?

Unlike capital orders for lump sums, transfers of properties or pension sharing orders which are one-off orders that cannot later be changed, spousal maintenance orders are always variable. That means that the amount to be paid can be reduced or increased, the term for payment can be increased or decreased, or the order can be terminated.

What factors are taken into account when varying an order?

On a variation application, the court will consider all of the circumstances of a case. One of the key factors will be the ability of the paying party to continue to make payments. If a payer loses their job or is on a reduced income, clearly their ability to pay will be reduced.

I am receiving spousal maintenance and my ex-spouse has lost their job – what should I do?

In the current circumstances where so much is changing so quickly, the important thing is to not act rashly and agree to something that you may later regret. If your ex-partner has lost their job then you should be sensitive to that, but if you are relying on those monthly payments then clearly your priority will need to be to ensure that your financial position remains secure.

You may want to consider adopting a temporary ‘holding’ position whereby you agree to a reduced level of income for a short-term period, with the understanding that the order remains in force and should be complied with when normality resumes. It is extremely important that you do not agree to any permanent change to the maintenance order without taking legal advice.

I am paying spousal maintenance – how do I protect myself during a temporary reduction?

You should bear in mind that arrears of maintenance will accrue during any period in which there is an agreed temporary reduction or cessation of maintenance. Entering into a consent order providing for a binding and enforceable change of arrangements with a remittance of any arrears is the only way to completely protect yourself, but if your ex-spouse is not willing to do this you should as an absolute minimum ensure that any temporary change is recorded in writing and acknowledged by both of you. Even an email, text or WhatsApp message will provide a measure of protection in the event of a later application to enforce the arrears.

I am concerned about my income reducing – can I pay a lump sum rather than pay maintenance?

If you have savings or investments that you can pay to your ex-spouse, you may wish to look at capitalising the order. That means that instead of continuing to receive a monthly sum, you take a one-off lump sum to replace that income and then you and your ex-spouse have a clean break order.

There are pros and cons to this, and the calculations behind a capitalised figure can be complicated, so you should take legal advice before agreeing to capitalise any order.

Should I make a court application?

Given the current turmoil and the impact on the court system, avoiding an application to the court unless absolutely essential should be the default position at present. Instead, try to open a dialogue and consider mediation or arbitration to provide for a non-court dispute resolution process. If you are unable to reach an agreement however or your ex-spouse is being unreasonable, then a court application for a variation may be your only option.

I am concerned about receiving child maintenance due to my ex-partner’s job – do I need to go to court over that?

For the vast majority of people, the court does not have jurisdiction to deal with child maintenance. For anyone earning less than £156,000 per year gross (£3,000 per week), child maintenance is dealt with by the Child Maintenance Service (CMS) and the first port of call should be Government guidance.

If either you or your ex-spouse earns more than £156,000 or you have a figure for child maintenance recorded in a court order that was made within the past 12 months, the court is able to deal with any issues that arise. In that event, the factors that the court will consider will be similar to those in proceedings concerning spousal maintenance, although it is not possible to capitalise child maintenance to avoid any future payments.

As with spousal maintenance, the first step should be to attempt to agree a compromise position which should be recorded in writing prior to making a referral to the CMS or an application to the court if agreement cannot be reached.

If the content of this update raises any issues for you, or you would like to discuss, please liaise with Matthew  Taylor at matthew.taylor@weightmans.com.

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