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Heather Souter | 3rd November 2020

Coronavirus; unable to make maintenance payments?


Heather Souter | 3rd November 2020

Coronavirus; unable to make maintenance payments?

Being able to make maintenance payments during the Coronavirus pandemic may be something you are worried about, either because you pay child or spousal maintenance to your former partner or spouse or you are in receipt of maintenance, and are understandably worried about how Coronavirus (COVID-19) may impact these payments.

Maintenance payments can broadly be divided into two categories: those relating to children (child maintenance) and those payable to your spouse (spousal maintenance) or soon to be former spouse.

What should I do if I can’t make my maintenance payments due to the Coronavirus?

There are two approaches if you cannot make maintenance payments due to the Coronavirus depending on how maintenance payments were agreed upon. We set out each below.

Child maintenance on a voluntary basis or via the Child Maintenance Service

By and large, child maintenance is the jurisdiction of the Child Maintenance Service (CMS) and not the family courts. The website is normally the first port of call and, in particular, the child maintenance calculator on it. Many separated parents are able to use the calculator to reach an agreement as to the amount payable, without then using the CMS itself and incurring the fees the CMS charges.

My advice if a paying parent’s income is affected is to do the same again; use the calculator and speak to one another, remembering that we are all facing difficult, worrying and unprecedented times. Dialogue and communication continues to be more important than ever.

I would also highlight that the website advice is to call them if your circumstances have changed because, for example you are temporarily receiving no income while you are self-isolating during the outbreak of Covid-19. Your payments may be reduced for the period and, if, so, you will get a payment schedule with the new amount. Recent guidance confirms that delays are to be expected.

This will be applicable to cases that are being managed by the CMS already. If a revised payment schedule is issued, it should provide both parents with certainty as to the payments that are now going to be made, allowing both to budget and adjust as best they can to the current circumstances.

The governments Child Maintenance Service website goes further and provides guidance in circumstances where there is a shared care arrangement, advising that if the arrangements have changed temporarily due to Covid-19, they will not be able to make any changes to the amount payable. This is because of the temporary nature of the change.  However, if this change of arrangement continues in the longer-term, you are advised to tell the CMS as soon as you can. My advice would be to keep this under review and, if in doubt, to call and speak to the CMS.

Maintenance payments contained within a court order

Not all child maintenance payments are made on a voluntarily basis or via the CMS. If you reached a financial agreement with your former spouse encompassing child maintenance, and this is embodied in a court order that is less than a year old, that order will need to be complied with. This could therefore cause some difficulties if you are due to pay maintenance that you cannot currently afford.

In these circumstances, it is possible to make an application to the court to vary maintenance orders and seek a reduction in the amount payable. This extends to maintenance payable to your former spouse, including on an interim basis whilst a divorce and reaching a financial settlement are being dealt with and finalised. If there has been a material change to your financial circumstances, i.e. a significant change to your income, then a variation will be justified. It is also important to make an application quickly as any reduction can be backdated to the date of your application.

Family courts

The family courts are still open; however, certain cases are being prioritised (as you would expect, predominantly those relating to children and urgent matters). The guidance in this regard is constantly being reviewed and updated and, the guidance from 16 April, states that the position is that the court will do its best to accommodate financial remedy matters. There has been some significant disruption to the court’s service and the majority of hearings are being dealt with remotely, such as via telephone or video conferencing. If an application is made, the court will have a broad discretion in dealing with it and will always have in mind the welfare of any children and the issue of fairness. Much has been reported and said about remote hearings, which is beyond the scope of this blog.

Before making such an application, careful consideration should be given to other practical steps that may assist; for example, speaking to your mortgage company, bank, energy supplier etc. Again, the website is a great source of information. You should also speak to your former spouse and explain the situation to see if any agreement can be reached together and by consent (if so, this should be formally recorded).

If agreement cannot be reached

In the event agreement cannot be reached, please be aware that it is possible for the payee to apply to enforce maintenance orders and also to seek arrears that may have accrued. In this way, you should not waste time in taking, in the first instance, practical steps and, if these do not help, seeking legal advice as to the best way forward.

Latest from the government

In a House of Commons Library briefing paper dated 6 August, it was noted that the CMS advised that the parent with care “keep a record of any payments received and any missed payments”. If any payments are missed, the CMS intends to begin collection activity in order to recover any unpaid child maintenance. It is not clear when this will be but, what is clear, is the importance of keeping records, so you should ensure that you do that. If you are the paying parent, it also highlights the importance of taking steps to address missed payments, as set out above.

Further House of Commons guidance, issued on 15 October 2020, reiterates that the Department for Work and Pensions are now beginning to reinstate a full enforcement service and, those found abusing the system, are subject to the full extent of those enforcement powers.

If you do find you need assistance in this regard, or in relation to any family issue you may be facing at the moment, the Paris Smith family team is available to help. We offer no obligation initial appointments at reduced rates, currently via video conferencing (such as Skype or FaceTime), and can help you make an informed decision about the steps to take.

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