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Help, I can’t pay maintenance to my ex!

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About Farhana

By Farhana Shahzady

You will not be alone if you are struggling to pay maintenance at the moment. Unemployment in the UK has rocketed with many more furloughed. Under the Coronavirus Job Retention Scheme, which has been extended until the end of October 2020, the government will pay 80% of wages up to a ceiling of £2,500 gross per month.

The Coronavirus Job Retention Scheme is a lifeline for many, but if you are paying maintenance to your ex spouse, in addition to trying to cover your own mortgage and outgoings, then you are going to be hit very hard, especially if you previously enjoyed an income over £30,000 p.a.

In this situation, keeping your ex spouse informed about your circumstances is key. It is unlikely to come as a complete shock since this is now a common predicament. It is important, however, to provide evidence of your reduction in income, since you cannot expect your ex to accept your situation without some scrutiny. If agreement can be reached that the maintenance will be reduced, or temporarily suspended, then it is best to confirm that in writing at the very least, so that there is clarity, although recording the new agreement in a consent order would be preferable. No doubt the maintenance can return to normal if or when your income goes back up.

However, the situation gets complicated if an agreement cannot be reached and a previous order to pay maintenance is being breached simply because you cannot afford it. At this point, seeking some professional help may be advisable to consider a formal application to the court to vary maintenance if dispute resolution has genuinely failed.  Otherwise, you run the risk of your ex issuing enforcement proceedings against you to recover the unpaid sums. It is a common misconception that courts are closed for business at the moment, due to lockdown, but that is not the case and an application can be made under section 31 of the Matrimonial Causes Act 1973 using a shorter procedure with a simplified Form E.

When considering any such application, the court will have regard to all the circumstances of the case, giving first consideration to any child of the family who is not yet 18 years of age. Importantly, a change in financial circumstances includes any change in matters which the court was required to consider when making the original order. The court can also consider the case afresh.

As you would expect, if the court awarded maintenance to your ex on the basis you had a good income, and if that is no longer the case, then that is an important factor for the court to consider. However, do bear in mind that the court does have the power to capitalise maintenance. So, even though you may no longer have the income you once had, if you have substantial sums locked up in savings, investments etc. the court could capitalise maintenance instead – i.e. order you to provide a capital lump sum in substitute for monthly maintenance or indeed order a pension sharing order instead.

When it comes to child maintenance, you can usually avoid court. Instead it is best to contact the Child Maintenance Service for a new calculation based on the new lower income. It is unusual for child maintenance to be eliminated completely, even if you are on Universal Credit and for good reason. The flat rate whilst on benefits is £7 per week.

Please do not suffer in silence. If you require advice about your options because you need to reduce maintenance, or if you have any problems obtaining the correct sums due to you, please contact any of the TWM Family team by direct email or direct phone.

For further information, please contact farhana.shahzady@twmsolicitors.com

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