Claire Davies is a family law specialist with extensive experience in complex and high net worth matters, particularly with cases involving businesses, pensions, trusts, cases with an international element and pre-nuptial agreements. Claire started her career with Smith Llewelyn Partnership in 2003 and joined JCP in March 2020.
During this extraordinary time, you may be worried about continuing to afford to pay spousal/civil partner maintenance to your former spouse/civil partner under a Court order because of a significant reduction in your income.
Similarly, you may be someone who is in receipt of spousal/civil partner maintenance and are worried about how you are going to meet your outgoings if your former spouse/civil partner informs you that they can no longer afford to pay.
Here are the options available to you should you find yourself in either scenario.
Be careful about finding yourself in breach of a Court Order
Do not simply bury your head in the sand and stop paying or reduce the payments of maintenance without reaching an agreement as you could find yourself in breach of a Court order and liable to pay arrears and potentially the other party’s legal costs. You need to communicate as soon as is practicably possible after learning of the reduction in your income and produce correspondence/documents available as evidence.
You should attempt to reach an agreement about the possibility of a temporary reduction, or suspension of maintenance payments if you believe that your reduction in income is not long-term. If you cannot reach an agreement, or if you are concerned that the situation is going to be long-term, an Application should be made to the Court to vary/discharge the maintenance order so that you do not find yourself in breach of a Court order.
Court should always be a last resort as these Applications are expensive and whilst many of the Courts remain open to deal with such matters, they are running with reduced staffing levels and are prioritising urgent cases. An Application to vary maintenance payments may not be considered to be urgent and so you should expect delay with any Application reaching a Hearing stage.
If you cannot reach an agreement without making an Application with the Court, you should consider instructing a solicitor to correspond with your former partner on your behalf. Mediation is a good option and this could take place via video conference. In fact,
if you were to proceed to issue an Application with the Court, you would have to evidence that you have attempted mediation.
Even if you are able to negotiate this between yourselves, you may still wish to instruct solicitors to prepare an agreement for you both to sign in respect of any temporary reduction or suspension in maintenance payments. This should be lodged with the Court for approval.
At the very least, you should keep copies of all communications between you and the other party to evidence that an agreement has been reached to avoid any potential misunderstandings in the future.
Making an Application with the Court
If it is not possible to reach an agreement, you will have to apply to the Court to vary downwards the maintenance payments.
You could also apply to discharge the payments altogether, although the Court may be suspicious of any attempt to use the current Covid-19 situation to your long-term advantage.
Equally, if you are the party in receipt of the maintenance payments and you have experienced a significant reduction in your income, it may be the case that you will need to apply to the Court for an increase in your spousal maintenance payments in order to meet your outgoings.
Whichever Application is being made, you should be aware that the Court’s powers are not just limited to varying upwards or downwards the amount of maintenance being paid. It also has the power to suspend or discharge an order altogether. If the Court decides to discharge the order it can capitalise the award of maintenance which means that the party paying the maintenance will have to pay a capital lump sum payment to the party in receipt of the maintenance when the order is discharged. This may be an option for you to explore in any negotiations with your former partner if capital is available to them, although you should always obtain legal advice to assist in any calculation of a lump sum payment as the calculation for capitalisation is tricky.
The Court’s first consideration when considering any Application will always be given to the welfare of any child of the family/civil partnership who has not attained the age of 18 years.
The Court is also likely to expect both parties to have explored the possibility of applying for a mortgage/loan holiday which should ideally be undertaken before any Application is issued with the Court.
For more information contact Claire Davies on 01792 529657 or email