With the far reaching financial impact of coronavirus on people’s livelihoods, affordability of existing spousal maintenance orders is an urgent issue for some families.
From job losses and businesses collapsing to the more (hopefully) temporary reductions in income for furloughed employees and the self-employed who fall within the government’s rescue package, the immediate and long-term financial effects of coronavirus will vary widely. Developments unfold on a daily basis and no-one can predict the future with any certainty.
Any spousal maintenance order can be varied by the court after an application by either party, but these applications are expensive and (even with the recent introduction of a “fast-tracked” procedure) take several months. The question for the payer of whether to apply to the court to vary the spousal maintenance order is therefore a decision to take carefully, with the benefit of advice.
Strictly until a court formally varies a spousal or child maintenance order, to stop paying or pay a reduced sum without an agreement with your former spouse would be a breach and could lead to enforcement proceedings. However, the coronavirus effect on incomes is widely understood and so negotiation in an attempt to reach a practical and cost-effective solution has to be the starting point.
Where there is a genuine need for maintenance by your former spouse the court would be very unlikely to end your maintenance obligation because of likely temporary effects of the coronavirus on your income. However, if your business has completely collapsed and/or significant debt has been incurred, depending on the level and duration of the need for your maintenance payments, it may be possible to end the payments and achieve a clean break. Every case will be fact-specific.
If you are faced with this scenario you should:
- Be open with your former spouse and explain the reduction in your income and show them evidence (if available) to confirm what you are saying is correct;
- Invite a review of your former spouse’s up-to-date income and outgoings so that you can assess the extent of the continuing need – it may be that they can manage without the maintenance. Acknowledge (where there is a real need for it) that this is worrying for them and that you want to maintain support so far as that is possible;
- Suggest your former spouse applies for any possible benefits or a review of existing benefits in light of the reduced support you can provide – the rules on Universal Credit have been relaxed to enable more people to qualify for assistance with mortgage payments as well as rent so a review is sensible;
- Consider applying for a mortgage holiday to reduce your own outgoings and suggest your ex-spouse does the same to reduce their own needs in the short term – many banks are offering these at the moment and although it increases the total costs of repaying the mortgage it does provide an immediate cash flow advantage.
If you cannot agree a temporary reduction in the payments after taking these steps you should seek early advice on ways to resolve the issue. In the first instance mediation is a good, cost-effective option (available via Zoom/Skype during this lockdown) to try to reach an agreement with help from trained third parties before you consider an application to court. The court system is under pressure and so a negotiated settlement will be much quicker and can offer more creative, flexible solutions that work for the family.
If you can reach an agreement about a temporary, reviewable adjustment to an existing spousal/child maintenance order you should formalise your agreement to avoid any enforcement of arrears after the crisis has passed.
Where no agreement is reached, as the court process would take too long, we advise couples try arbitration which is a binding out of court dispute resolution process. The costs of that should, however, be avoided if possible.