19/10/2022
Spousal maintenance payments are designed to assist the ex-spouse who does not have sufficient funds themselves to meet their income needs and where the paying party has sufficient additional income to make this affordable for them.
Spousal maintenance orders require one party of a former marriage to pay regular amounts usually on a monthly basis to their ex-spouse sometimes for a number of years, sometimes for life.
However, a dramatic reduction in the paying party’s income could lead to them struggling to pay the agreed amount.
The good news is that spousal maintenance orders can be varied and variations are often required to reflect changes during parties’ lives. For example, the amount of payment can be varied upwards or downwards, the term of the payments can be changed and, if necessary, an order can be terminated.
For spousal maintenance payments to be varied the courts will consider a number of factors, the first being the ability of the paying party to continue to meet payments. So, they will consider any change of circumstances, for example redundancy or retirement.
Here are my top tips on what to do if spousal maintenance payments are becoming a problem:
- Communicate with your ex. As the paying ex-spouse, it is important to inform your ex that your circumstances have changed and that you will be unable to meet the agreed payments.
- It is sensible to attempt to agree a temporary payment schedule based on affordability, as arrears of maintenance can accrue during this period.
- Make sure you record any agreements in writing. You should obtain legal advice to discuss how to formalise any variation to the order.
- If you are the ex-spouse that receives maintenance and you become aware that your former partner has lost their job, your priority will of course be to maintain your financial position to the best of your ability. You may agree to a temporary reduction based on a reduced earning capacity on the understanding that the original court order payments will resume once your ex finds a new job.
- Whether you are the paying party or the receiving party, it is vital that you seek legal advice regarding any change to these arrangements to protect your position.
- In some circumstances it is possible for the paying party to make a one-off lump sum payment from savings or investments to capitalise the spousal maintenance order. This means that instead of continuing to pay monthly payments, you would make a one-off payment and thereafter obtain a clean break order. If you are able and wish to make such a lump sum payment, you should seek legal advice to ensure that any figures agreed are calculated accurately.
- In practice it is better for parties to try to come to a suitable arrangement between themselves, potentially with the assistance of mediation. Ultimately, if you are unable to reach a mutually suitable agreement, as a last resort you could make an application to the court to vary the court order.
Financial problems can create great stress for both parties. The key is to communicate clearly with each other and to seek legal advice to reach an acceptable arrangement.
If you are affected by issues relating to spousal maintenance payments, call our resolution-accredited family team to request an appointment.
