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What to do about Spousal Maintenance during the Coronavirus Pandemic

Posted: 24-04-2020

During this economic decline, almost everyone currently has financial concerns. It is important to understand what your position is in relation to spousal maintenance and what your options are.

A Spousal Maintenance Order is an ongoing obligation to pay a specific sum of money to a spouse or ex-spouse by way of periodical payments or interim periodical payments on a regular basis, whether weekly, monthly or annually.

The amount payable is usually assessed on the basis of firstly the reasonable income needs of one spouse, and secondly the ability of the other spouse being able to afford to make payment of those assessed needs.

The coronavirus has impacted the current UK job market with an average of one fifth of workers being furloughed.  Others face having their incomes reduced or being made redundant and many businesses are falling into liquidation.

With incomes therefore either reduced or completely extinguished for some individuals, there will clearly be a subsequent impact upon their ability to make payment of the any Spousal Maintenance Order.

What to do if you or your ex-spouse can longer afford Spousal Maintenance Payments

Just because your income has changed or you can no longer afford the maintenance payments does not automatically relieve you from a court order to make the payments. The Order is a legally enforceable document and there can be severe consequences for breaching an Order of the Court.

If you currently have an obligation to pay Spousal Maintenance and you can no longer afford to do so you must show evidence of your inability to make the payment.  Being furloughed or having an income reduction will not automatically mean that you cannot afford to pay as your income and reasonable outgoings will need to be reconsidered.

If you are in receipt of Spousal Maintenance but your income has reduced and you can no longer afford your outgoings, consideration may need to be given as to whether your spouse/ex-spouse can afford to bridge the gap.

If you were in receipt of Spousal Maintenance and your spouse/ex-spouse has ceased making these payments then the court has the power to enforce the Spousal Maintenance Order and to order interest on late payments and legal costs.  Action must be taken swiftly.

A Spousal Maintenance Order is an order that can be varied, however on an application to vary the Court does have the power to vary either upwards or downwards and therefore legal advice should be taken before making any such application which could end with you being in a worse position.

When the Court are asked to vary a Spousal Maintenance Order, they will review the current financial circumstances of each party, including the current and likely future income and outgoings of each party.  A number of criteria will also be taken into consideration including:

  1. The intention of the Spousal Maintenance Order
  2. The financial resources of each party
  3. The paying party’s ability to meet the income needs required of the spouse/ex-spouse

The effect of the coronavirus on the Court

If the Spousal Maintenance Order is not being paid, you cannot afford to pay it, or the payment is not enough to meet your outgoings due to an income change, you would need to make an application to the court for either a variation or enforcement of the Spousal Maintenance Order. The current problem with this with COVID 19 is when and how a hearing will be listed.

The coronavirus has affected the court’s usual processing system. This has left the court backlogged with applications and hearings whilst also having less staff to assist. There may be long delays in having an application listed for a hearing. It is rare that an enforcement or variation of a Spousal Maintenance Order would be considered urgent.  Hearings that do proceed are rarely being dealt with at Court with personal attendance and are either being dealt with by written submissions (written arguments) or by remote hearings (usually telephone or Skype). Neither of these has the same effectiveness as attending court in person.

Meeting legal fees is also likely to cause some difficulty as the basis of the application is of course not being able to afford to pay.

What to do instead of making a Court application

Court proceedings should be the last resort. There are other options in resolving Spousal Maintenance issues which are much quicker and much more cost effective.

Discussing the issue together in a practical manner and considering such things as mortgage holidays, loans, benefit applications, a payment schedule or liquidating capital resources may assist in reaching a resolution.

Should you be having difficulty with direct communication then mediation is often the next best way of trying to resolve matters.  Mediation continues with COVID 19 and is currently being conducted by video conference calls.

Should you require more specific advice and consider that mediation may not be suitable, seeking advice from a solicitor who is practical and mindful of legal fees outweighing the amounts in dispute will likely be the next option.  A solicitor who can work flexibly with other professionals and who can explore all of the options with you of resolving the matter will be crucial to resolution.

In the event that negotiations are not successful then you may have no option but to make a Court application. However, you would be doing so in the knowledge that you attempted all other reasonable methods to resolve the matter and with a solicitor who has walked you through those options and will be able to advise you with confidence when submitting the application to the Court.

At Sousa Law we offer free initial consultations in relation to all Family, Children, Divorce and Financial matters and can talk you through all options available to you to resolve any issues in dispute. If you have any further questions or need advice please do not hesitate to contact us.

by James Looi and Catherine Sousa

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Family Lawyer Southampton, Family Solicitor Southampton, Divorce Lawyer Southampton, Divorce Solicitor Southampton