The increasing rise in the cost of living is making life tough for many of us. We have had a number of enquiries either from people reliant on maintenance from an ex-partner, or those making payments, asking if it can be varied or stopped altogether to take into account current inflationary pressures.
The difference between Spousal Maintenance and Children Maintenance
Spousal maintenance is not the same as child maintenance. Child maintenance is obligatory whereas spousal maintenance is discretionary.
When couples get divorced or dissolve a civil partnership, if they have been through financial remedy proceedings there may be a Court Order for spousal maintenance. Spousal maintenance arises where one party’s income or assets are insufficient to meet their day-to-day need e.g., they have a much lower income than the other or have not worked for some or all of the relationship period. Spousal maintenance is usually paid on a monthly basis and continues either for a defined period of years or occasionally for the remainder of the parties’ life, known as a “joint lives order”. The question of how much spousal maintenance should be paid and for how long will vary from case to case, although the Court’s starting point is to try and achieve a clean break whenever possible.
Child maintenance on the other hand has a prescribed formula to determine how much is payable and can be worked out using the Child Maintenance Service (“CMS”) calculator, which considers several factors including the paying parent’s income, the number of children living with the paying parent, how many children are involved, and how often the children spend overnight with the paying parent. This is often a useful starting point for parties during negotiations and many separating couples agree payments at that level, without any further input from the Court or the CMS.
Both spousal maintenance and child maintenance could be payable at the same time and are sometimes referred to collectively as “global maintenance”.
Varying Child Maintenance
Either party can refer the matter to the CMS for a reassessment if they think that the level of maintenance should change in light of any changes in the paying parent’s income. If the level of child maintenance is included within the financial order, then the parties cannot seek an assessment from the CMS until 12 months after the date of the order and the amount specified in the Order is the amount that must be paid.
The CMS will carry out an annual review which will assess the paying parent’s income, benefits, and circumstances to ensure that the right amount of child maintenance is paid for the next 12 months once an application has been made to them.
The presumption is that child maintenance will continue while the child/ren are financially dependent upon their parents, this could mean payments stop when the child reaches 18 or perhaps finishes secondary or even tertiary education.
Varying Spousal Maintenance
If either party fails to agree to vary the spousal maintenance, then a solicitor can help with negotiations which may resolve matters, or failing which, an application can be made to vary the Court order.
The Matrimonial Causes Act 1973 enables the Court to vary upward or downward the amount payable under a spousal maintenance order or extend the length of time for which maintenance is payable (unless this has been specifically barred under s28(1A)). Many long-term spousal maintenance orders will make provision for the amount of maintenance to increase year-on-year on a variation date. To try and avoid disagreement over the amount, orders often provide an automated system of increase linked to the widely used Consumer Price Index or the Retail Price Index and are said to be “index-linked.” This will only occur if an inflationary provision was made in the Court order, which cannot be applied retrospectively.
However, as we all know, wage increases don’t necessarily mirror any cost-of-living increase so the person paying the maintenance might say that they cannot afford such an increase if their income has not grown accordingly. Similarly, a receiving party can apply to the Court for spousal maintenance to be increased if they find that they cannot make ends meet and they believe that the paying party can afford to pay more. The Court may well be reluctant to order that spousal maintenance should increase, save in the most exceptional of circumstances.
As part of the variation process, the parties will be required to provide details of the change of circumstances and their current financial situations in a Form E2. After consideration of all circumstances of the case, the Court will assess if any variation should be made and if so, from which date the variation should take effect.
Can Spousal Maintenance be stopped?
The paying party can apply to Court for the maintenance to be reduced or brought to an end if there has been an adverse change in their financial circumstances or an improvement in the financial circumstances of the recipient.
Any paying party must note that they cannot simply stop paying maintenance, even if they can no longer afford it, as they would be in breach of a Court order and can be penalised accordingly. If circumstances have changed and the paying party cannot afford to pay spousal maintenance, they should make an application to Court for variation as soon as possible. A recipient will not lose their right to receive the maintenance purely on the fact of cohabitation, although if there are two incomes being received into one household, this may make a difference to whether the spousal maintenance is still needed.
Spousal maintenance can be discontinued in a variety of ways e.g. if the maintenance is payable for a specified number of years and that term expires or if the spouse receiving payments gets remarried, which means an automatic end to the spousal maintenance. A judge retains the discretion to terminate payments if the paying party can justify that this is fair in the circumstances. The Court will also consider the appropriateness of implementing a clean break which would not cause undue financial hardship to the payee.
The Court can also contemplate whether there should be a capitalisation of spousal maintenance, and this is another option each party should think about. This is whereby the spousal maintenance payments are consolidated into one lump sum payment, which may have positives or negatives for the payer and the payee dependent on their individual circumstances.
How we can help
If you have a maintenance order, whether you are the recipient or the payer, it may be worth checking the terms of the order for a variation clause. It is worth seeking professional advice as an application variation could result in an adverse decision if the financial positions are not assessed correctly.
At THP Solicitors we have specialist divorce solicitors, who are experienced in applying and defending applications for variation of spousal maintenance. We have helped many couples settle these types of issues and can advise you based on the facts of your case. Please call Julia Drury on 0118 975 6622 (Lower Earley office) or Richard Rodway on 01491 570900 (Henley-on-Thames office) or send us a confidential email to firstname.lastname@example.org