Covid-19 and what to do when considering Variation of Maintenance payments

This year has brought more change to our lives than any of us could have ever anticipated. Previously stable industries like travel and hospitality have almost collapsed whilst other businesses have seen record levels of profit amidst increased demand for their services. If you have ongoing financial obligations to your ex and have suffered financially as a result of the pandemic then you may wonder if there is anything that you can do to alleviate the pressure in these times. If you want to discuss this with one of our lawyers, please get in touch today.

If you previously reached a clean break with your former spouse then in all likelihood there is very little that you can do to change the agreement that was reached. However, if an element of that agreement involves spousal maintenance, it is open to you to make an application to the court for this to be varied downwards to reflect the change in your financial circumstances.

This is not a step to be taken lightly and there is no guarantee that you will be successful just because your income has dropped. The court will consider all the circumstances of the case, including both parties’ financial circumstances and needs. Therefore, if your ex has also been impacted financially by the pandemic, this will be taken into account. The court’s first consideration will be for the welfare of any child who is under 18.

It is of course always best to avoid litigation if at all possible and therefore parties should try to come to an agreement directly. However, it should always be borne in mind that if an agreement cannot be reached then court proceedings may be necessary. There are a number of things that you can and should do to protect your position from the outset;

Communicate and keep a record (but keep it cordial)

Whilst direct communication can be fraught, and even impossible in some circumstances, it is important to try and start a dialogue directly if you can. This can help avoid the need to make a court application and incur the costs associated with this. However, if you are met with a wall of silence, the existence of this correspondence (and the lack of any response) evidences a willingness on your part to try to resolve matters at the earliest juncture. This may be of assistance if you are forced to issue proceedings. Judges are slowly becoming more willing to recognise parties acting in an unreasonable manner and making costs awards that reflect this.

However, if you want to show that you have been cooperative, ensure that your correspondence is polite. If you produce correspondence to the judge that is littered with petty comments and profanities, any good favour that you may have gained will likely disappear. A good rule to live by is to imagine that a judge is reading your email

Covid-19 and what to do when considering Variation of Maintenance payments 5.10.2023, 19.13

back to you in the cold light of the court room, if the thought makes you cringe, it’s probably best not to hit send.

It may be that you are able to come to a compromise and if so, you should ensure that there is a written record of this, whether that be in a letter signed by both parties or a side agreement. Get in touch today if you would like us to assist you with this.

Provide evidence

If you are the paying party and have been made redundant or suffered a pay cut then it makes sense to provide your ex-partner with the documentation in support as soon as possible. If they can see the drop in your income in black and white, the change of circumstances should be obvious. This will help to speed up the process if they chose to obtain legal advice because these are the first documents that their lawyer will request.

If things progress to court, you will be required to provide your recent payslips and P60 so there is no harm in producing this at the earliest opportunity to set out your position to contrast against your financial circumstances within the original proceedings.

Be flexible

The regulations and therefore, the associated government support, are changing frequently. Businesses will be responding to changes as and when they are implemented and so if your hours are increased or your pay is reinstated, you should be prepared for maintenance to increase in line with that.

Equally, if you are the payee, whilst you are under no obligation to agree to a reduction in your maintenance, it is much better to take a constructive approach, particularly if the difference in maintenance is likely to cost you less than the associated legal proceedings.

Get legal advice

If you are not able to progress matters by communicating directly, then it is sensible to get some initial advice on the prospects of success of a variation application. It may be that sending a letter from a solicitor forces the other party to take matters more seriously. However, instructing lawyers does not have to mean fully contested court proceedings but sometimes is the necessary catalyst to encourage sensible and constructive discussion. Get in touch today to speak to us.

Do not stop payments

Finally, it is important to note that your initial court order remains in effect until either an agreement to vary is reached, or the court makes a determination. Therefore, if you do not make payments in line with the order you will be in breach and your ex could choose to commence enforcement proceedings. You must comply with the order but if this is impossible because your income has reduced so considerably, then you should raise this issue

Covid-19 and what to do when considering Variation of Maintenance payments 5.10.2023, 19.13

with your ex at the earliest opportunity so that they do not get a surprise when they check their bank account… The court can order that you pay these arrears so it is not as simple as saying that you cannot afford payments and that is the end of the matter, you will need to be able to demonstrate this.

Whether you would like some initial advice, assistance with a court application or formalising an agreement to vary an existing order we can help – get in touch to set up an initial, no obligation, consultation today.