To vary or not to vary – spousal maintenance

Posted on: March 27th, 2020

The coronavirus crisis has seen an unprecedented number of people find themselves out of work temporarily or worse, permanently out of work. But what about those who have an obligation to pay spousal maintenance? Without the permission of the court, your legal obligation to pay spousal maintenance will not automatically be suspended during this crisis.

What are your options?

If you find yourself without an income, or facing a significant drop in your income you may need to consider making an application to the court to vary the financial order.

What will the court do?

When asked to consider varying a financial order the court will first order both parties to file updating financial disclosure. This will be a more reduced version of the financial disclosure form used in standard financial remedy proceedings, but will involve exchanging payslips/tax returns so that the court can see exactly what your income position is. The court are not going to re-visit the whole of the financial arrangement between the parties, they will instead adopt a “light touch” approach to reviewing matters.

The court has a range of powers available when considering these applications. They could:

  1. Vary the amount paid each month.
  2. Suspend the payments for a period of time.
  3. Capitalise the payments so that the paying party makes a lump sum payment and discharges their monthly payment liability.

 

The court has a wide ranging discretion and treats each case on its individual merits. It also has to weigh up the impact on the receiving party of losing out on their monthly payments – it is not just a case of the monthly payments being reduced because the paying party has lost their job.

If, as the government intends by making financial support available for employers, this is a temporary period of unemployment/wage loss, then it is likely that the court will order a short term cessation in monthly payments to enable the paying party to regain employment or increase their monthly income when this pandemic has passed.

For those who are self-employed the position is more challenging, there is not the same level of government support available and future income prospects may not be as positive. If that is the case, then be prepared to thoroughly prove your case. The burden is on the party applying to vary the order to prove their case, you should gather as much evidence as possible to support your claim before making an application to the court.

When should I make the application?

As soon as you can demonstrate that your income has been reduced. The longer you leave it the more likely it is that you will either receive government support or find alternative income sources. It is always preferable to make an early application than struggle on making monthly payments and tell the court months later that you can’t manage the payments anymore.

If you are unsure whether you should make an application, contact our family team to discuss your situation so that you can make an informed decision as to your next steps. You can find their direct contact details here, or please do fill in the enquiry form below.

Are you a parent, separated from your ex-partner? If so, you may be anxious right now about how to navigate child arrangements in such uncertain and concerning times. What happens to children who have two homes as a result of a separation or divorce? – click here to find out your options.