Spousal maintenance in the time of COVID-19
Russells is fully functioning by way of remote working and here to help regarding family matters. Please do not hesitate to get in touch with one of our family solicitors (details below) if you have any concerns or would like further information.
Following the impact of coronavirus on the UK, many of our clients have asked for advice about how to manage ongoing spousal maintenance payments. On an economic level, the pandemic has affected businesses, employees and the self-employed and many are rightly concerned about how they will either meet their obligations as the paying party, or cope with meeting their basic needs as the receiving party, should payments not be made or be made at a reduced level.
Spousal maintenance is entirely separate to child maintenance payments which often involves the input of the Child Maintenance Service. Spousal maintenance seeks to assist a transition to independence for spouses who, for example, have given up their career in order to raise the children of the family and who cannot return to work at an equivalent level to their ex-spouse, given the years away from the workplace. Some spousal maintenance orders are made for the duration of the person’s life, while more commonly, they taper or end after a fixed term. This depends on factors such as the age of the parties, the duration of the marriage and the relative earning capacities of the parties.
In a situation where maintenance payments are ongoing, the door remains open for a party to either seek a variation in maintenance either upwards or downwards or, if appropriate, to seek a termination of maintenance. An appropriate time to consider this would be if circumstances are materially different from when the finances were settled. Such a change might include where your salary has been reduced due to the financial impact of COVID-19, where you have been furloughed by your employer or where you have lost your job. It may be appropriate to seek a variation in maintenance that you pay to your ex-spouse. Such a variation can be agreed by the parties directly or negotiated by the parties’ lawyers – there is no requirement to go to court unless an agreement cannot be reached between you.
In a situation where the receiving party rejects a proposed reduction in maintenance without good grounds for doing so, there is a significant risk that they could be liable to pay both your costs and their own costs if you are forced to go to court to achieve the same level of reduction and succeed. Therefore there is good reason for the parties, respectively, to make sensible offers, and to consider them carefully.
Mediating can be a particularly effective option because of the discrete nature of this issue and we can refer you to expert mediators. Many are offering discounted rates for sessions conducted remotely during this time of lockdown.
Section 25A of the Matrimonial Causes Act 1973 makes clear that the courts should consider, not just at the outset of a case but throughout, whether it is possible for the parties to have a clean break both as to income and capital. Even though the finances are settled, if you are now in a position to capitalise maintenance payments in one lump sum, this would be desirable in the eyes of the court and, most likely, your ex-spouse. Most individuals tend to prefer the certainty of a capitalised settlement, and it may be possible to agree a discount on the amount given that it is a lump sum and can be invested wisely to generate further growth in the future.
If you would like to discuss variation of spousal maintenance, or would like advice relating to another family or children matter, please contact one of our family solicitors who are available remotely:
Carol Ellinas – carol.ellinas@russells.co.uk