Partner and family law expert, Justine Flack gives some key considerations for those receiving or paying maintenance on divorce in the wake of COVID-19.
COVID-19 is affecting all of us and the situation changes rapidly. As well as the fear of becoming ill many are facing the fear of loss of income. So what is the position where you are either the payer or the recipient of maintenance following a court order in divorce proceedings?
Any order remains in place until it is varied or discharged by the court or it expires in accordance with its terms. Failure to comply with the terms is a breach and enforcement proceedings can be commenced.
If you can’t afford to comply with the order you should apply for a downward variation as soon as possible. However, practically, the first thing you should do is contact your former spouse. Tell them what your current situation is and be open and honest with them. Give as much information and evidence as you can and put forward reasonable proposals for dealing with the situation.
If you are able to propose a sensible adjustment as a temporary measure which will allow both your own and their households to meet essential day to day needs, this is a good course of action. It would also be looked upon more favourably if this matter were to end up in court and a judge has to review the approach taken.
As the recipient of maintenance, be practical. Working with your former spouse to find a workable solution for what we hope will be a short period of time is likely to result in a better outcome.
Everyone needs to think practically about what they can do to cut expenditure. Consider applying for a mortgage holiday if you are able and focus on essential living expenses so that budgets can be managed. Working together will be better for both of you in terms of your future relationship and that is particularly important where there are children.
If you can agree matters between you this would be better than going to court and will avoid legal costs associated with that. Record any agreement in writing and agree regular reviews of the situation so that further adjustments can be made as necessary. The aim should be to revert to the terms of the order as soon as possible.
There will be people who will try and use this situation to their advantage and suggest that they now have no income therefore they should pay nothing. In those circumstances request full details and evidence. You may need to consider an application for enforcement alternatively, you may also seek to capitalise maintenance if the payer has assets. A loss of income where capital is available will not necessarily lead to the termination of a maintenance order and it can result in capitalisation.
It is entirely possible that if the court is asked to discharge an order it will simply make a downward variation on the basis that we are in a temporary situation. As long as a maintenance order exists an application for an upward variation can be made in the future when the situation has improved.
I would advocate trying to keep these issues out of court and resolve matters by way of negotiation. If you require assistance with this and need advice and guidance, please contact the Family Team who would be happy to advise.
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