Our consultant lawyer, Rona Samuel, provides some helpful advice on the impact the COVID-19 lockdown may have on child maintenance:

Where are we now with Spousal and Child maintenance payments?

The current impact of the lockdown on people’s ability to work and receive an income understandably raises questions for those paying and receiving spousal maintenance and/or child maintenance.

I am receiving spousal maintenance and my former partner has stopped payments, what can I do?

Maintenance payments might be paid on a voluntary basis or following a court order. Regardless of the nature of the payments, communication between the parties is vital.

If your former spouse is genuinely unable to afford the payments, there needs to be some adjustment in your respective household budgets. During these uncertain times it is inevitable that if the paying party suffers a reduction in their income both households will need to adjust accordingly. Invite your former spouse to produce evidence of their income, try and agree an appropriate monthly sum which would enable you both to meet your essential outgoings.

The court process should only be considered as a last resort. If the payments are being made under a court order an application can be made to the court for enforcement. If the payments are made on a voluntary basis an application should be made to the court for a periodical payments order.

I am paying spousal maintenance under a court order and my income has reduced what should I do?

If payments are made pursuant to a court order, it is crucial that you act quickly. Communicate with your former spouse. You will naturally be concerned about how you will meet your outgoings and your former spouse will be equally concerned about their ability to meet their income needs.

If you can reach an agreement with your former spouse, record the agreement in a signed document and keep a record of all the communication leading up to the agreement. If an agreement cannot be reached, it is essential that an application is made to the court for a variation of the existing court order. If you delay the application your former spouse could apply to the court for enforcement.

My former partner has reduced my child maintenance payments what can I do?

If the payments were paid on a voluntary basis contact you and your former should partner to try and negotiate a mutually acceptable level of payments. If this fails, contact the Child Maintenance Service and apply for a maintenance assessment. If the Service carries out an assessment and collects payments for you, it is important to bear in mind you and your former partner will be required to pay for the service; therefore, reaching an agreement is normally the better option.

If child maintenance is paid under a court order, which is less than 12 months old, consider applying to the court for enforcement.

I am paying child maintenance and my income has reduced what can I do?

If your payments follow from a Child Maintenance Service assessment and your income has reduced by 25 percent or more, and you are unable to reach an agreement with your former partner, contact the Service and apply for a variation.

If payments are paid under a court order which has been running for less than 12 months apply to the court for a variation. If you fail to make that application, your former partner could apply to the court for enforcement. Failure to pay maintenance would be a breach of the court order.

If a court order has been in place for 12 months or more and a Child Maintenance Service calculation would result in a payment less than the court order, try to negotiate a payment in line with the CMS calculation with your former partner. If you are unable to reach an agreement apply to the Child Maintenance Service for a maintenance assessment.

Applying to the Court for an order

Before making an application to the court it is normally a requirement to attend mediation. There are exceptional circumstances when this requirement is waivered. Ideally parties should attempt to resolve issues surrounding spousal and child maintenance payments outside the court process. With income restricted and a during a period of uncertainty the focus should be on trying to reach an amicable arrangement to meet both family’s income needs. The court can make a cost order (i.e. that the unsuccessful party would have to pay the other party’s legal costs and the court costs) against an unsuccessful party so the cost of proceedings should always be balanced against the payments in dispute.

The courts are still operating undertaking hearings via telephone or video. The courts are under immense pressure now and there is no doubt that delays will be incurred. As an alternative to court consider Mediation, Arbitration or other methods of Alternative Dispute Resolution

A Family Law specialist would be able to discuss and explore the options available in each case. The above is intended as an overview only and there might be other options available depending on the individual circumstances of each case.