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When a marriage breaks down, it is relatively common for there to be a difference of opinion about how the family’s resources should be divided up and allocated for the future. Sometimes these differences can be resolved by a frank and businesslike conversation between two adults around a table, perhaps with a mediator where necessary. Sometimes, a tolerable outcome can be negotiated by solicitors, either in correspondence or by involving the protagonists in collaborative practice or a four-way meeting. Sometimes, people need an arbitrator or the court to decide how finances should be separated out on divorce. Whatever the process, there are three truths: first, there needs to be full and frank disclosure of all financial circumstances, or the settlement is never really final. Secondly, the only way to get a fully binding settlement is to get it made into a court order. The third truth is that where the order includes a provision for maintenance – ie that one person should make regular payments to the other, either for themselves or for the benefit of a child – there is no real finality to arrangements until that provision is no longer effective.

Maintenance after divorce is a highly contentious subject. On the one hand, it can be a key tool for ensuring a measure of fairness when marriages end, and that (in particular) children and care-givers who have sacrificed earning capacity to care for them are not dramatically disadvantaged by a change in their family circumstances. On the other hand, maintenance payments tie former couples to each other after divorce, when goodwill can be at a low ebb. They can be a source of ongoing discord and resentment, particularly when one side wants to move on with their life and form a new relationship or family. For that reason, there is an obligation on any court looking at financial matters after divorce to consider whether there can fairly be a monetary ‘clean break’ between those involved.

It’s important to understand that if one person doesn’t agree with a court-ordered maintenance provision, he or she can’t just stop paying it or readjust the amount to one that they consider fair. Until the court order is changed by a specified event or a further court order, it remains valid and enforceable, therefore not paying as ordered can get you into big trouble – including being sent to prison.

A recent case illustrates this. It concerns child maintenance, in one of those rare cases where the court can still deal with this issue rather than having to cede jurisdiction to the Child Maintenance Service (the father lives in Dubai), but the issues are the same where spousal maintenance is payable.

The former wife in this case was seeking to commit her former husband to prison for non-payment of arrears of maintenance (£1,150 per month) and a costs order made against him at an earlier hearing. The former husband’s arguments were that the child did not need as much money as the court had ordered him to pay, and that his circumstances had changed since the order was made:

“I would like the court to be aware that while funds have been depleted I have continued to pay £400 per month in child support payments, which, according to the applicant’s own budget submission at the August 2015 financial hearing, more than covers all of [our daughter’s] clothes monthly requirements. Therefore the intent to pay and support [our daughter] is clearly evident. …

Please be advised that only the April payment was not made as [our daughter] spent the entire month with me [9th March to 8th April], and therefore all costs incurred during this period were borne by me and not her mother.

In addition, I recently married, in February 2016. I did not have a proper wedding ceremony, nor did I have a honeymoon, due to financial limitations. I continue to represent myself at all court hearings relating to financials and children matters due to financial limitations. This will continue in the light of my current unemployment status.

I believe that both my new marital status, financially supporting my wife, plus unemployment, provides material grounds for a downward variation application. I would like the opportunity to either discuss this with the applicant’s solicitor directly or submit an application to the court to be heard alongside the applicant’s claim for arrears and judgment summons.”

In response, the court said,

“These writings show a profound misunderstanding of obligations under an order of a court of law. An order of a court of law which provides for child periodical payments is not some indicative suggestion; it is a judgment which must be complied with.

By the husband’s writings he seems to believe that because he has in mind that there are circumstances which might justify a variation application that he is entitled unilaterally to reduce the payments to what he thinks is just; not what the court has determined to be just. This is completely unacceptable, and if such behaviour were to be tolerated it would strike at the very heart of the rule of law.”

The court committed him to prison for fourteen days under s5 of the Debtor’s Act 1869, a sentence that it suspended provided that he pays the outstanding sums due within twenty-eight days.

The correct course of action would have been for this man to make an application to the court seeking a downwards variation of his maintenance obligation on the basis of a change in his circumstances, which the court could then investigate fully to ascertain whether an adjustment was appropriate. Just saying he would like the opportunity to do so now, when arrears are being enforced against him, is not enough for the court. There’s a right way to do things: that wasn’t it. As a result he has ended up with a prison sentence hanging over his head.

If you’d like to talk to us about a maintenance order that might need reviewing, or any other family law matter, you can give us a call on 01223 443333 and make an appointment with Tricia, Sue, Gail, Simon or Adam.

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