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COVID – 19: TO What Extent Does the Pandemic Undermine Maintenance Orders?

This note expands further on that by Tara Lee  which primarily addressed court orders providing for capital redistribution on divorce.

In family law there are two general types of maintenance order, they are for children or for the ex-spouse or civil partner of the paying person (hereafter referred to as ‘spousal maintenance’ for convenience).  Orders for children can be made by the court either within divorce or dissolution of civil partnership proceedings (hereafter referred to as ‘divorce proceedings’ for convenience)  or, where there are no such proceedings or where the parents are not married or civil partners, under the Children (Jersey) Law 2002.

The law generally refers to a change to a court order as a variation and the matrimonial and civil partnership laws provide that the court may at any time vary child or spousal maintenance orders and will take into account “all the circumstances of the case including any increase or decrease in the means of either party”.

The starting point has to be that all court orders must be obeyed.  A failure to pay maintenance in accordance with an order is a breach and will be taken very seriously by the court.  The obligation to pay in the terms ordered continues and therefore if payment stops, arrears will build up. A court is unlikely to be sympathetic to a person asking to be let off payment of arrears if they have ‘sat on their hands’ and not brought the matter back to court as soon as possible.

In the context of the COVID-19 emergency the most likely change of circumstances will be a decrease in the income of the paying person caused by being laid off, made redundant or given notice of the end of employment. Such a change will support an application for a downward variation of maintenance.

The other side of the coin is that a successful downward variation application will worsen the financial position of the receiving person.  The receiving person’s overall situation will also be taken into account by the court when it exercises its discretion in the matter when it considers ‘all the circumstances of the case’.  The court has to exercise its discretion to produce fairness.

What you should do:

Where the payer has reduced income they should move quickly to avoid arrears accumulating if they cannot afford to continue to pay the ordered amount.  The payer should not stop paying without authority of the court unless it cannot be avoided. The advice is to engage in a dialogue with the other person immediately, provide a transparent explanation of their financial position and seek agreement to a reduction. If agreement is reached the court can be invited to reduce the order, by consent. If dialogue or agreement is not possible an early application needs to be made to the court to secure the date from which any change applies. Any order may be made well after this due to the current difficulties cause by the pandemic, but can be applied from the date of the application.

Advice to the party receiving such a request is to be reasonable and if possible consider negotiating a temporary reduction.

Social Security may assist when the receiving person’s income falls.  Enquiries should be made directly with social security via the helpline, on 01534 444444, or online at www.gov.je.

If you find yourself in this position and would like some advice please contact the author Alison Brown or any member of the family team.

To download this briefing note please click here.

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