If you cannot afford to carry on making maintenance payments, then you will need to get the order varied. This can either be done by agreement or via an application to the court to vary the order. You will need to consider your position carefully because the court has the power to increase the order as well as reduce it, and will have to consider all the circumstances, not just your reduced income or increased outgoings.
In any event, it is important to act quickly and to get advice as to what steps you should take in order to keep your costs down and resolve your situation as swiftly as possible as you will need to keep making payments in the interim period.
Can’t I just stop making payments if I can’t afford them?
You have a court order against you so simply not paying is the worst option that you could take, as it is likely that such unilateral action will cost you more money than going down the proper channels.
If you simply stop paying, then your ex-partner can apply to the court to enforce the order. They could obtain an ‘attachment of earnings’ order so that the money is taken out of your wages and paid to them directly. That can also include any arrears that have built up. Defending an enforcement application will likely cost you extra money on legal fees which would have been better spent on trying to have it varied, and you may also be liable for their legal costs as you start off in the wrong for being in breach of an obligation. Your situation will not be resolved unless you are able to secure agreement from your ex-partner or the court, so it is important that you get on with that rather than burying your head in the sand.
Contacting your ex-partner about the situation may be difficult, but a sensible communication which explains the problem and invites discussion/agreement will be seen in a positive light by any judge later reviewing the situation, providing that your explanation concentrates on factors that the law takes into consideration.
If your financial situation is so bad that you cannot afford to make the full payment, then one option can be to pay as much as you can in maintenance each month. You should be aware that your ex-partner could still take the above action against you and that you will have to pay the arrears back. Therefore, it is important to act as soon as you are aware that there is a problem and to take legal advice if you are contemplating making reduced payments. That first communication flagging up the problem can make a great deal of difference to perceptions about your attitude.
Does the case have to be heard in court?
Many cases of this kind end up in court, but this is not the only option. Other possibilities are:
- Your case can potentially be resolved by consent. If you can show that your ability to pay has reduced significantly then it may be possible to reach an agreement with your ex-partner, either through your respective lawyers or through mediation;
- If you are unable to agree to a variation, this process is far cheaper and quicker than court. You and your ex-partner would appoint an arbitrator and agree that their decision on the matter is final. Arbitration proceedings have the benefit of being flexible, so you and your ex-partner can both have a say in how the dispute can be resolved.
These options are swifter and cheaper than court proceedings and are often preferable for both sides. However, if your ex-partner is not willing to go down any of these routes, then you will have to make an application to the court.
Why didn’t the judge put conditions on the order to make it adjust to changes in our circumstances?
Generally-speaking, judges are directed to avoid over-complicating orders for spousal support and directed to base the terms on the evidence/facts as they are at the time and not speculate on changes in circumstances: senior judges reported in case-law have told the lower judges not to look into a crystal ball when deciding on the terms. Even if a court order was made in the expectation that somebody would become financially independent by returning to work or otherwise adjusting to living on their own income, the judge will not put automatic consequences in place. Any ‘triggers’ for change need to be fair and so judges frequently make orders for the longest period that might be appropriate and leave it that the parties should discuss or agree variations to bring forward or modify payment arrangements. Even when there is a cut-off written into the order (called ‘term’ orders), the judges put the obligation on the parties to bring the situation back before the court for changes before the cut-off and rarely write in automatic variations.
As the payer is expected to have a higher income, it is assumed that they will be better placed to afford to make an application if the person receiving support does not agree to vary, so the default is for orders to be set up to last longer than might be needed, rather than the onus being placed on the supported person to ask to extend the period.
Unfortunately, people getting support often forget that the duration written into the order was the maximum expected and may refuse to negotiate for reductions or an earlier cessation. It is not uncommon for support to be considered an absolute right for the maximum duration and not make any adjustments to become independent before that support is due to end. That failure to recognise the need to adjust often leads to conflict that could have been avoided if the legal advice given at the time of the order was clear and, when appropriate, the support seen as a temporary measure to enable adjustment without undue hardship.
What can the court do about the original order?
Under s. 31 of the Matrimonial Causes Act 1973, the court has a very broad discretion to vary the order. Its powers include the following actions:
- It may reduce or increase the maintenance payments;
- It may suspend the payments for a set period;
- It may extend the term of the order for maintenance payments (unless the original order contained a bar to this course of action)
- It could “capitalise” the maintenance payments either in full or in part, meaning that your payments would reduce now, but that a lump sum determined by the court will become payable;
- It could discharge the order completely if the judge considers that right to do, particularly where there the payee’s circumstances have improved.
How will the court come to its decision?
It is important to remember that this is not an opportunity for you to get ‘a second bite of the cherry’ which undermines the original order, so you will need to be able to demonstrate that your circumstances have altered significantly since the making of the order. The court will want to know why you cannot afford to make the payments any more if that is the sole basis for asking for reduction/cessation.
Demonstrating that there is a change is only the first step however, as the court has to consider all the circumstances when deciding whether to vary the order, meaning that your reduction in income is not the only relevant factor. In making its decision, the court will have to consider the same factors that it did when making the original order. These are contained in s.25 of the Matrimonial Causes Act 1973. The key questions that the court will consider in an application for variation are:
- The welfare of any minor child of the family – The court will do its best to ensure that any variation has minimal impact on the children, so they will be reluctant to make any order that would have the effect of moving the children from their current school or home;
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future – As the applicant, you will need to be able to justify the amounts that you spend on your outgoings as the court will not reduce maintenance payments if you are overspending or relying on estimated costs. As stated above, this is not an opportunity to revisit the same arguments that you made at the time of the order, so you will need to ensure that you are not saying that you have financial needs that have previously been rejected;
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future – This will be a key factor. If your application has come about as a result of a loss of income, then it may not be enough to demonstrate that you have less coming in each month if your earning capacity has not altered. The earning capacity of your ex-partner will also be a key factor, as the court will expect them to have made reasonable attempts to move towards financial independence if they were not working at the time of the original order.
- The standard of living enjoyed by the family before the breakdown of the marriage – Unless your circumstances have changed dramatically then the court will not go against the decision of the original judge on this point.
What should I do first?
As you will need to show that the circumstances have changed materially since the making of the order, the first thing you need to do is to make sure that you have all the information that you will need. Being able to present a clear picture of what the position was at the time of the order (in the example 5 years ago) compared to what they are now is key to your prospects of success. Information you will need includes:
1. The original court order. You should have received this from your lawyer at the time that your original case was resolved. If you don’t have it, then you can get a copy from the court. Your lawyer should also have a copy, but the passage of time will mean that it may have been archived;
2. A clear picture of how the decision was reached. The following information will be useful:
- If you were able to settle out of court on the first occasion, then you will have filled out a “Statement of information for a consent order in relation to a financial remedy”, known as a Form D81;
- If the case went to court but was settled without the judge making the judgment (for example at the First Directions Appointment or the Financial Dispute Resolution hearing) then you should have been given the summaries that were submitted to the court at the time. You lawyer should have them on file if you do not have a copy;
- If the judge gave judgment then you should obtain a copy of this from the court or your lawyer.
3. A clear picture of your current situation. You will only be able to provide clear information on your own circumstances in the first instance. You will need to disclose your financial circumstances including your income and any assets that you own in the same way that you did in the initial proceedings.
The more information you can get together at the beginning, the easier it will be for you to obtain clear advice on the potential outcome of your application. You should contact a qualified Solicitor as early as possible to explore your options and avoid getting into arrears.