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Can I vary my spousal maintenance order as a result of COVID 19?

View profile for Jennifer Allen
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Whether or not you are employed or self‑employed, if you are suffering from the impact of a salary decrease, you have been furloughed, made redundant or a contract ended, you will no doubt have concerns as to your obligations under the terms of a maintenance order. 

When a spousal maintenance order was made it was likely to have been based upon projected income.  It was expected that, save for an extraordinary event, that income would continue throughout the duration of the maintenance term.

We are now all experiencing an extraordinary event and for many, the impact of COVID‑19 will be a significant reduction or complete stop to their salary, income from self‑employment and otherwise.  You may have concerns that you cannot afford your basic outgoings let alone spousal maintenance. 

Equally a recipient of spousal maintenance may be frightened that, the payer of the spousal maintenance may stop making payments.  For the recipient who is solely or incredibly reliant on maintenance as a result of low non‑maintenance income or income that has also ceased will be concerned as to the impact of COVID-19. 

When a spousal maintenance order was made both the payer and recipient of spousal maintenance would have been advised that, a variation of a maintenance order during the course of that order is possible.  The Matrimonial Causes Act 1973 permits variation of orders and applications to Court to consider such variation.  The Court has the jurisdiction to either increase / reduce or in circumstances end a maintenance term based upon the specific facts of a case.  The Court is required to consider the changes in the circumstances that have arisen since the original order was made.  A significant change of circumstances can enable the Court to revisit and vary the original maintenance order.  Income and income needs will be considered on both sides.  The Court’s concern when dealing with such applications will be whether, under the normal circumstances, can the needs of both parties and the children be met. 

So far very little is known about as to what principles the Court may apply in the current extraordinary crisis given the developing extraordinary situation which seems to be changing on a daily basis.  The Court has jurisdiction and wide discretion.  The Court can be creative and consider whether the person who is supposed to pay the maintenance has any other capital resources or alternative income to which would enable the payer to continue payments.

Similarly, if the recipient of maintenance has lost an alternative income stream as a result of COVID‑19 the Court may consider an uplift to the original spousal maintenance order to ensure that needs of recipient and any children are met.  

My advice to those who find themselves in this situation at present is to see whether an interim solution can be agreed.  An application to Court can be expensive.  You need to consider how proportionate it is to incur costs of litigation versus what it is you hope to recover or achieve at Court.  Those who are considering an application ought to be mindful that it could take the Court 6 to 12 months for this to be resolved.  At present there are a reduced number of courts and therefore timeframes for an application to be dealt with are likely to be delayed.  The Courts are considering urgent child protection cases as a priority.  Cases regarding financial matters are not necessarily considered to be as urgent. 

Given that COVID‑19 may be a temporary issue, and may not impact upon longer term financial circumstances, it is difficult to predict what the Court’s view may be.  The longer term impact on income and the economy is not yet known.  Therefore, the income issues that you may be experiencing now may not be something that you are experiencing in, say, 3 or 4 months. It is expected to take 3 or 4 months before you will attend Court for your initial hearing. 

As mentioned above, the cost of a Court application could outweigh the amount you are seeking to recover by way of maintenance enforcement, reduce by a variation downwards, or increase by a maintenance variation uplift. 

My strong recommendation is therefore to consider alternatives to the Court process to include potentially mediation or negotiations either personally or via solicitors.  Please do contact me if you require any further advice or assistance. 

If you have any questions relating to spousal maintenance matters, please contact Jennifer Allen on 01242 586854 or at JAL@hughes-paddison.co.uk     

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