Growing number of spousal maintenance orders affected by Coronavirus pandemic should be reviewed, warns family lawyers

Posted on Monday April 27, 2020

The Family Law and Relationships Team at a leading London law firm is calling on divorced couples to consider the impact of Coronavirus on spousal maintenance orders as enquiries about payments start to be made.

Experienced lawyers at Mackrell.Solicitors say that divorced couples are already starting to question spousal maintenance orders as the economic impact of the pandemic hits households.

Orders are typically made by the courts following a divorce to ensure dependants, including spouses, are financially supported.

When orders are made, a court considers the paying party’s financial ability to make such payments and an exploration of past, current and likely future income is normally carried out and the receiving party’s need to be financially supported in this way.

Manisha Hurchurn, an Associate within Mackrell.Solicitors Family Law and Relationships Team, says many orders will have to be reviewed due to the current situation.

She said: “With people being furloughed, taking pay cuts and made redundant as a result of the financial impact of Covid-19, there could very well be many a paying party that has to raise an awkward conversation with their ex-spouse about the continuation of maintenance payments.

“If someone subject to an order to pay spousal maintenance can no longer afford to do so, the onus is on them to raise this at the earliest opportunity with their ex-spouse. They are legally bound to keep paying payments until an agreement is reached to vary the amount paid or cease it completely.”

Manisha advises an informal verbal approach initially, especially given the emotional sensitivity of the pandemic, rather than a formal letter in these times. However, she says any conversation or agreement should then be followed up in writing to record any agreement made.

“If an agreement to reduce payments – a downward variation – is reached then that should be recorded in writing; an email would suffice and a paying party has nothing more to do,” she explained. It would however be wise to file a consent order at court to record the change in payment arrangements.

Manisha said that if an ex-spouse is unwilling to discuss a downward variation, even temporarily, the normal family law mechanisms kick in.

In this situation, Manisha advises divorced couples to take advice from a family solicitor, attempt mediation or arbitration and, as a last option, make an application to the court for a downward variation of the spousal maintenance payments.

She said: “A judge has wide discretion on this and will assess each case on its individual circumstances. There needs to be a significant change in the financial circumstances before an order will be changed.”

In a final word of warning, Manisha said: “Such global emergencies should not be used as an excuse by a paying party to have a ‘payment holiday’ or to force a downward variation permanently. They will have to provide hard evidence of the reduction in income before a court will apply a downward variation and if circumstances change for the better then they may be required to begin repaying a higher amount again.”

With the Family Courts currently operating at a reduced capacity due to the Government’s ‘Stay at Home’ guidance, Manisha is hopeful that couples will take a pragmatic approach to this situation that is in the best interests of all involved.