Prompted by the helpful commentary by my colleague Megan Bennie which you can read here, as well as a number of enquiries via the iFLG website over the last week or so, I have been considering the impact of the ongoing COVID-19 crisis on spousal maintenance.
Whilst there are many pressing issues affecting us all personally as well as professionally at this time, one of the great many worries for many is the affordability of outgoings when our incomes might be being scaled back. This might be the usual standards of rent, mortgage payments and groceries. Or new outgoings prompted by the crisis, whether it be subscriptions to Zoom (professional) or Netflix, Amazon and Now TV (just to pass the time), other distractions for self and children or 300 toilet rolls. Like those toilet rolls, it all stacks up.
Not a question on everyone’s lips right now, but as family lawyers we will be asked this question over the coming weeks.
Many Court orders dating back several years will have provided for spousal maintenance based on projected incomes. The thought at that time, even as recently as orders made in January or February of this year would have been that, save for an extraordinary event, that income would continue.
But we are now experiencing an extraordinary event. And for many, the impact of coronavirus and the current shutdown will be a reduction or complete stop to their income.
Payers of spousal maintenance may no longer be able to afford the periodic payments. Recipients of spousal maintenance may no longer be able to make ends meet with their usual non-maintenance income either reduced or extinguished.
Section 31 Matrimonial Causes Act 1973 permits the variation of a maintenance order during the course of that order. The Court is bound to consider changes in circumstances since the original order. A significant change of circumstances, such as a reduction or complete stop of income, can prompt the Court to re-visit and vary the original spousal maintenance order. The Court does not have carte-blanche to vary and the purpose and underlying premise of the original order must be taken into account.
But the primary concern of any Court dealing with a variation application, whether under normal circumstances or these new-normal circumstances, will be to ensure that the needs of both spouses and any children are met.
I cannot speak here as to the principles the Court might apply in the current crisis, given the developing extraordinary situation and the fact that the Court has a wide discretion when determining variation applications to consider all circumstances.
But in normal circumstances the Court would most likely reduce or extinguish a spousal maintenance obligation in the event that the payer’s income has reduced or ceased. The Court might consider whether the payer has any capital resources or alternative income with which to continue payments as part of the general circumstances of the application.
If the recipient of spousal maintenance no longer receives an income from employment or other non-maintenance sources, the Court may consider an uplift to the ongoing spousal maintenance so as to ensure the needs of the spouse and any children are met. The affordability of that uplift to the paying spouse will be considered. Again, any capital resources of both spouses will also be considered.
So, if you are in a position where your income or your former spouse’s income has been affected by the COVID-19 crisis, you may need to be alert to the potential to vary the spousal maintenance order.
As I have said, the Court can vary a spousal maintenance order. If a variation is required and it cannot be agreed, then an application will need to be made to the Court.
In the best of circumstances, this might take the Court 6-12 months to resolve. In the current shutdown, the Court are not experiencing the best of circumstances. And so, this timeline is likely to be protracted unless the court can be convinced of the urgency of an application.
We presently do not have any firm indication of how long the shutdown will be operative. We are hoping for a return to normal life by the summer, but it may be longer. The longer-term impact on income is not yet know. And so, the rationale for a variation application may be out of date by the time it comes to be determined by the Court. The costs of a Court application may well outweigh the temporary benefit which is sought.
It is therefore worthwhile to explore alternatives to the Court process. This might involve mediation or negotiations personally or via solicitors.
A solution might involve temporary measures in the shadow of what the Court might do. A temporary cessation or suspension of maintenance for as long as the crisis continues. As well as the power to vary, the Court can temporarily suspend payments, or it might involve an increase to payments to meet needs. The Court can vary maintenance upwards, even temporarily.
All options might be considered as temporary non-binding agreements without prejudice to the longer-term maintenance obligations for when the crisis is over. It is a time to take sensible practical steps and I would urge former spouses to negotiate a short-term solution rather than engage in long-term expensive litigation.
These are all options in the shadow of a formal Court application.
In these trying circumstances it is best to take advice from a specialised family lawyer and in the first instance, to see whether a temporary fix can be negotiated. The Courts are over-stretched and are unlikely to be able to consider and determine a variation application expediently.