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COVID-19: Maintenance

06 May 2020

Maintenance is a key part of financial settlements for many people. It is common for financial orders to include a provision that the higher earning party supports the financially weaker party with monthly payments, to ensure that they can meet their reasonable income needs until they can become financially independent. This is known as ‘spousal maintenance’. Child maintenance is also paid to meet the needs of any children of the family.

Unlike orders for lump sum payments, an order for maintenance is always variable. There are limited circumstances in which the court will reconsider whether an order for a lump sum should be set aside in light of unforeseen events. Maintenance is always variable to reflect that the future is uncertain and a person’s income or income needs can change over time.

In the current economic circumstances and uncertainty resulting from the COVID-19 pandemic, many people are fearing for their job security and ability to pay maintenance. At the same time, a result of lockdown is that those receiving maintenance have different needs from usual. As such, many people are re-assessing their maintenance obligations/requirements during this unprecedented time.

Sadly, perpetrators of domestic abuse may also use this as an opportunity to seek to further control their partner financially and this is something to be alive to.

If you are affected by any of these scenarios, the first step should be to seek to agree any changes to maintenance. You shouldn’t simply stop paying/receiving maintenance. If you cannot reach an agreement, you can make an application to the court or seek to resolve the disagreement with assistance from a mediator, arbitrator or a private judge. However, if you do issue an application to court, the court will expect you to have tried to reach agreement (unless there is good reason not to). There are likely to be delays before a judge can hear this type of application, due to the court’s workload resulting from the pandemic.

Child maintenance

The majority of cases relating to child maintenance are not dealt with by the court. Unless  the income of the person paying maintenance exceeds £156,000 per annum gross, or the paying parent lives overseas, the level of child maintenance that you should be paying is governed by the Child Maintenance Service (CMS) – if you are paying maintenance through the CMS and your income changes then you should notify them of this change and they will reassess the amount you should be paying. Some parents do not use the CMS but instead reach an informal agreement between themselves as to what each parent should contribute financially. If you can agree a change to your maintenance obligations with your former partner, this is the optimal solution.

If the paying parent’s income is over £156,000, child maintenance obligations cannot be determined by the CMS and, in the absence of an agreement, are determined by the court. If you need to adjust your obligations then this will need to either be agreed with the other parent (including via Alternative Dispute Resolution methods if you cannot reach an agreement directly) or ordered by the court.

Spousal maintenance

Spousal maintenance can also be varied up or down (or capitalised). In any circumstance where a variation is sought, the first step is to seek to agree the variation with the other party. In the time of coronavirus, the courts are placing even greater emphasis on this and expect both parties to behave reasonably in relation to any changes to maintenance.

For example, if the income of the person paying maintenance has been cut (for example they may have agreed to a percentage reduction in their income, have been placed on Furlough or have had payment for projects delayed) then it may be reasonable for them to reduce their maintenance obligations by a similar percentage for the period that they are not receiving their normal income.

However, this does not mean that one person can use the economic uncertainty caused by COVID-19 to unilaterally change the payments they are making to a former spouse, particularly if their basic income has not yet changed. The first step should always be to seek an agreement for any change to maintenance and for both parties to act reasonably.

During the lockdown, courts are focussing on urgent and emergency applications. This means applications that concern variation of maintenance are unlikely to be dealt with in the short term. However, the court has been clear that when it comes to deal with these applications in due course, it will pay close attention to both parties’ conduct during the COVID-19 crisis and whether they were acting reasonably.

By way of example, the court is likely to be critical of people who:

  • unilaterally reduce maintenance payments without seeking agreement of the other party;
  • stop payments citing the COVID-19 pandemic despite there being no changes to their income; or
  • refuse to consider reducing or altering the maintenance they receive, when informed that the paying party’s income position has changed as a result of the present economic uncertainty.

The key message from the court is to be reasonable and, within your means, flexible. People who do not follow this guidance risk the censure of the court in due course. Moreover, it is worth noting that if an enforcement application or application to vary maintenance is made, the court has the power to order that the person who has ‘lost’ pays the other party’s costs, and will consider the conduct of both parties when deciding whether or not to do so. As such, a failure to act reasonably in this time could have significant financial consequences beyond an adjustment to how much money a person pays/receives each month.

Interim maintenance/maintenance pending suit

The same principles apply to those cases where there is not yet a final agreement and maintenance is being paid to maintain the financial status quo.

If the amount of maintenance to be paid cannot be agreed, then an interim application for ‘maintenance pending suit’ can be brought to force one party to pay the other at a certain level, until the financial issues between you are resolved and the divorce finalised. These types of application can be unpredictable, and again have cost consequences for the ‘losing party.’

For those dependent on interim maintenance, you should not be afraid to accept slightly less than you would normally need, as it should not impact on your claims for long-term financial support. An acceptance of less for a short period whilst your former partner’s income has reduced as a result of the COVID-19, or while your costs are reduced because you are not spending at a usual rate during lockdown, would show that you are behaving reasonably in a difficult financial time and not that you can meet you long-term income needs from this amount. That said, you will need sufficient maintenance to meet your urgent financial obligations (such as mortgage payments/rent, food or utilities).

Conclusion

The court has been clear in its guidance that it expects parties to behave reasonably and considerately during this time. Failure to do so could result in penalising orders being made against you. The first step should be to seek to agree any changes to maintenance payments with your partner. Maintenance payments should not be unilaterally stopped or reduced, particularly without any definite change in their circumstances or income. Court applications can still be made if you are not able to agree or you can also approach a mediator, arbitrator or another private adjudicator.

We can help you with negotiations, selecting appropriate Alternative Dispute Resolution and represent you at any hearings.

Our Family team is available to assist you with the full range of difficulties that you may be facing at this unprecedented time. You can contact the team here.

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