Coronavirus likely to lead to a need to review spousal maintenance orders

News Article

Thousands of people in the UK are facing the prospect of a reduced income as a result of the Covid-19 pandemic and this is likely to result in many being left unable to meet their regular spousal maintenance payments.

These payments mustn’t be stopped, as it will be seen as a breach of the original court order. So, what steps should divorced couples and dissolved civil partnerships be taking in light of the current crisis?

To help we have looked at some of the common queries around these payments and the impact that the pandemic is likely to have on them.

What is a spousal maintenance/periodical payments order? 

Spousal maintenance is paid by a husband or a wife (or civil partner) to their former spouse/civil partner following a divorce to meet their needs that otherwise would have been fulfilled by the relationship.  Formally it is called a periodical payments order.

Maintenance is typically paid monthly and continues either for a defined period or for the remainder of the parties’ lives.  You will know if there is a Court Order requiring you or your former partner to be making payments.  If there is no Court Order, then any payments agreed are voluntary.

These types of orders will only usually end when the recipient remarries or if either party dies, but any maintenance order can be varied or dismissed by the courts on a change in circumstances, such as a reduction in income.

How are the payment amounts set? 

In determining whether and how much spousal maintenance should be paid the court has regard to the overall circumstances in the past, present and future.  Clearly the Covid 19 crisis may be a change of circumstances if it has affected income.

I cannot pay my spousal maintenance order due to the economic impact of coronavirus. What should I do?

Thousands are likely to find themselves in this position as a result of this pandemic. Guidance suggests that parties should first seek to reach an agreement without going through the courts.

The onus is on the paying party to ask for a reduction in payments and this should be agreed in writing, clearly setting out how long the reduction will last for and any conditions for increasing payments in future.

Due to the current social distancing requirements, it is believed that an email should suffice in lieu of a more formal document, but it may be best to seek advice and keep a record of all correspondence to prevent a dispute arising in future.

My ex-partner will not agree to a reduction in maintenance payments, OR my ex-partner has reduced maintenance without my agreement.  What can I do?

You could initially attempt mediation to see if, with the assistance of a third party, you can come to an agreement without going to court.

However, if no agreement can be reached then either party can apply to the court to vary the maintenance upwards or downwards, to reflect the change in circumstances.

If a person loses their job as a result of the pandemic or sees a significant cut in their income and they are unable to reach an agreement they can apply to the court for a suspension or downward variation of the maintenance, however, if alternative employment is found or income increases again, the recipient can also seek an upward variation to reflect this change in circumstances.

Those attempting to seek a downward variation or suspension of payments via the court will be required to evidence their claims in detail.

The Courts are likely to be overwhelmed with these applications.  The time for getting any form of hearing is going to be months away.  However you need to file an application if you can’t reach agreement as any variation can only apply from the date an application is made.  Having made the application to the Court you then need to consider whether you and you partner will agree to binding arbitration – essentially a private judge – who can make a fully binding award.

How do I do all of this

Making an application to vary and order can be as complicated as the original court applications for maintenance.  You must seek specialist advice to ensure you follow the correct procedures when seeking a downward variation.

Similarly, if you are in receipt of an order and are approached by a former partner to suspend or vary payments it may be best to seek advice to ensure the request is fair and appropriate.

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Graeme Fraser
Posted in Blog, covid-19.