ASK A FAMILY LAWYER
In this regular column, Stowe Family Law solicitors answer readers’ questions on different legal issues. Today’s query goes to Jennifer Reddy, a solicitor in our Wilmslow office. If you have a brief question you’d like to ask, contact us and we’ll choose one for the next Ask A Family Lawyer.
My ex-wife has moved in with a new partner. He seems to be comfortably off. Do I have grounds for cutting my maintenance payments?
There are no grounds for reducing child maintenance on the basis that your ex-wife is living with a new partner. Your obligation to pay child maintenance continues regardless of your ex-wife’s circumstances. However if your circumstances change, for example you lose your job or you have another child for which you are financially responsible, then it may be possible to ask the Child Maintenance Service to re-assess the level of child maintenance payable.
A similar principle applies to spousal maintenance (or ‘periodical payments’ to use their official name) in that it may be possible to ‘vary’ (change) the amount payable during the lifespan of the legal order. However it would be necessary to make an application to the Court to vary the amount or duration of the payments.
The first place to look is the order made by the Court setting out how much you should pay and the circumstances in which maintenance will come to an end. It may be that the order says that spousal maintenance will end on cohabitation (which is usually defined as a set period in any 12 months, for example three or six months). It is unusual to see this provision in an order and more commonly spousal maintenance is ordered to come to an end at specified times – for example after two years, once the youngest child reaches 18, on the death of either party or if the receiving spouse remarries. In short it is unlikely that you will not have automatic grounds to vary spousal maintenance as a result of your ex-wife’s cohabitation. It would be necessary to apply back to the Court so a judge can determine whether the payments should be changed.
What would the Court consider?
So, if you do make an application, what would the Court look at in making its decision? You would need to show the Court that there has been a change in either your financial circumstances or those of your ex-spouse.
In your case you could say that your ex-wife is now cohabiting but that alone would not necessarily be enough. You would need to go a few steps further. Is your ex-spouse being supported financially by her new partner? Does he pay the rent or mortgage? Contribute towards the bills? Are they living in his home so your ex-wife no longer has to pay rent or mortgage? These factors would be relevant.
It may be that you are struggling to meet the payments due to a change in your personal circumstances. You may have lost your job or more commonly, you may have seen your income reduce over time until it bears no comparison to the income you had at the time the order was made. If you have remarried and had another child or children then your income will be stretched further than it was before. If you find yourself in any of these situations, then you may have grounds to vary the spousal maintenance order.
The Court will consider the welfare of any minor children in making its decision and where possible, the Court will wish to give the receiving party time to adjust to a change in income so as to avoid undue hardship.
The Judge has wide discretion to determine whether the payments should come to an end, be suspended, or go up or down. He or she can even make an order for the spousal maintenance to effectively be paid off in one or more lump sums, provided there is enough capital.
There is a duty upon the Court to consider a clean break at the earliest opportunity. If circumstances permit one, then you may succeed in terminating the spousal maintenance order.
A word of warning however. The success or otherwise of these sorts of application depend very much on the specific facts of each case and it is essential to consult a lawyer before you look to change your spousal maintenance payments.