As more and more jobs and businesses are impacted by the Coronavirus/Covid-19 pandemic, payers and recipients of child and spousal maintenance will undoubtedly be worried about how they will manage to meet their financial commitments.
If you find yourself in the situation of your normal income having been significantly reduced for reasons beyond your control such as losing your job or illness it is important that you consider how any child or spousal maintenance will be paid.
If this is being paid via the Child Maintenance Service it will be essential that you contact them as soon as possible so that they can reassess your liability.
If you and the other parent have previously come to a voluntary agreement you should contact them as soon as possible to explain the situation. Being honest and transparent and keeping your communication open at these uncertain times will be key. Be clear that as soon as your income returns to normal the original payments will resume.
If you are currently paying child maintenance in accordance with a court order that was made less than 12 months ago then you will be in breach if you don’t continue to pay. If you have no option but to stop paying or reduce your payments without your ex’s agreement you would be at risk of enforcement action being taken. However, if arrears accrue in circumstances which are entirely genuine e.g. if someone were to lose their job and their income, the court can remit i.e. wipe off some or all of any arrears which may accrue depending on the circumstances you find yourself in. Again, speaking to the other parent if you can (or if not, an email/letter) will be key but if you are unable to come to an agreement together you will have to make an application to the court for a downward variation.
If you are making voluntary maintenance payments to your ex then again communication is key. Speak to them. Be prepared to show that you are making changes to your own lifestyle and are making budget cuts. Provide evidence to support your income reduction and any changes you are making. Remember the impact will be felt by you and your former partner and you will both be trying to do the best for yourself and those dependent upon you.
If the payments are in accordance with a court order then you will be in breach unless there is agreement to stop paying or you obtain an order varying your liability through the court (you can use arbitration for this process as well). If you are in breach you are at risk of enforcement. If you are unable to reach an agreement with your former spouse then it is essential that you make an application to the court to have the order varied.
Reaching an agreement
If you are able to reach a temporary agreement with your former spouse/other parent then get it in writing so that you have a clear record of the new arrangements. Make sure you keep the correspondence confirming the agreement and any paperwork which was shared leading to the agreement. You may wish to convert this into a court order (a consent order) so there is formality around the arrangements. However, the correspondence should be more than sufficient provided there is no subsequent arguments that the other person was misled or made to agree out of duress or undue influence.
If you do find yourself in the situation of needing to apply to the court for a variation of an existing order, or indeed you wish to enforce an existing order that is not being adhered to, it will be important that you seek legal advice as soon as possible. At the moment the courts are doing all they can to undertake hearings via telephone or video. However, there is no doubt that the courts are also struggling with staff reductions and so they will be having to prioritise cases which is unlikely to be maintenance cases. Therefore, we are expecting significant delays before variation and/or enforcement applications can be dealt with.
The application is made by lodging form A1. The court fee for this application is £255 and you will need to have attended a mediation information assessment meeting (MIAM) (which will incur further costs), unless certain exemptions apply. There are circumstances in which you can be exempt from paying the fee.
We are currently living in very uncertain economic times. Payers and recipients will be equally worried. Communication, understanding and building or maintaining trust will be crucial in ensuring that you work together for the benefit of your children.
If you need any advice or assistance on these issues please get in touch with us. We are able to offer appointments by telephone or video.
- Share any evidence you have to show how your income has been reduced. Don’t just assume you saying it has happened will be believed.
- Keep you ex up to date with any changes, whatever they may be.
- Don’t bury you head in the sand – act and react quickly.
- Consider finding a mediator who can meet virtually to help resolve the issue and don’t just use the MIAM as a means to getting the application form signed (which is the requirement unless the exemptions apply); genuinely try to use mediation to resolve matters.
- Empathise – this will impact on you and your ex and it is a very worrying time for all.
- Pay what you can e.g. if your income has been reduced but you can still afford something when having cut out any costs you can reduce.
- See going to court as a last resort and consider the process of arbitration for a swifter and more focused resolution.
- Recognise that if your separation was difficult it is likely to be very hard for your ex to accept the change is genuine so you will need to be as open and transparent as you can be.
- Be conscious of the fact that if an application is made that has no merit when it is clear maintenance is affordable, you may be at risk of an application for costs.
- Given the unique circumstances, as part of the conversation about how to manage think about how you and your ex would be able to use any savings you may have to meet any shortfall in maintenance and be imaginative as to how you are able to assist one another, especially for the sake of your children.