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Hi,
I wonder if anyone can give me some advice about maintenance arrears. I have been divorced for 6 years now, and in that time my income has varied. There has been a consent order in place since 2004 under which I paid £600 a month maintenance for my two children. My ex wife is employed and doesn't get any additional support from me. Over the last few years, my financial situation has changed, and I now pay my ex considerably less than the original order. She earns considerably more than when the order was made as well, and I have got remarried and have another child. She remains single. We have not sought a formal variation to the order, but have agreed some changes informally between us.
I say "agreed" but it's actually more complex than that. When I lost my job a couple of years ago, I was unable to pay maintenance and my ex went to the CSA. Because I am self employed, cash flow is generally an issue and I argued that my ex would be better off waiting until I got a new job (which 6 months later I did) when I would resume payments at a higher level than she would get through the CSA. She agreed. I got a new job (which paid less) and started paying her £400 a month (still more than she would have got through the CSA). Last year my financial situation worsened again, and again she went to the CSA, and again she droppped the claim after we agreed that I pay her £175 a month until my financial situation approved. That's just under the level the CSA would make me pay, according to their online calculator, but my plan is to increase the amount I pay as my financial situation improves.
All this has been going on for a few months now.
During this time, however, my ex has started reducing the amount of time I spend with the children by arranging various activities for them during school holidays. We live 200 miles apart and she refuses to share the driving, so seeing the children during school holidays has become, at best, unpredictable. There is a consent order in place which gives me greater access to the children which was fixed at the time of the divorce when the children and I lived much closer to one another.
I contacted my ex wife recently and told her that if she continued to deny me proper access to the children, I would seek a Defined Contact Order through the courts. She has countered this with a threat to go to court to enforce the "arrears" in child maintenance if I pursue this course of action.
My questions are:
1) Since we haven't applied for a variation in the original consent order on maintenance, can she indeed class the reduced payments as "arrears?"
2) Would the court take into account her informal consent to the new financial arrangements in considering whether the "arrears" are, indeed, payable?
3) What are my best options for renegotiating the maintenance? The CSA? A new court order?
4) After the divorce, my ex got the house which she has subsequently sold and moved to a larger house in another part of the country and has a job that pays about twice what I earn. She also no longer pays for childcare and earns considerably more than she did when we originally submitted our budgets to the court. My income has fallen and my expenses increased. Does that count for anything?
5) Will her holding my children to ransom like this cut any ice with the courts?
I know that's a lot to ask for a first visit - but I can't afford a solicitor and if any of this does end up in the courts I will have to represent myself. I am also frightened of going bankrupt.
Thanks
HMc
Hi Hugh Mc
Thanks for you recent post - I will ask our experts to look at it for you and they will answer in the next couple of days or so
Good luck with it
Mario
Dear HughMc
We will attempt to answer your questions based on the information you have provided, although these are very complex issues and it may be worth gaining some one off advice from a solicitor in your local area.
1) There is no definitive answer to your first question. As maintenance has been agreed in a consent order then you are legally obliged to pay the amount specified in the order. However, it is always possible to make an agreement between parties outside of the original order. The longer the varied arrangement has been followed the less likely the court will enforce the original order. It will also be beneficial if you have evidence of your ex-wife’s agreement to the variation. However, it is always possible that the court will order for the arrears to be paid in full as the maintenance order states.
2) As stated above, it is possible for that the court would take into account your ex-wife’s consent to the new maintenance arrangements. After a period of time it may be presumed that there is an implied consent to the new arrangement if your ex-wife has decided not to take the matter back to court for enforcement.
3) It is very difficult for maintenance orders to be varied. It has to be proven that there has been a significant change of circumstances. The law regarding alteration of maintenance agreements is contained with Children Act 1989, Schedule 1, paragraph 6 which we have reproduced below:
6 (1) In exercising its powers under paragraph 1 or 2 to vary or discharge an order for the making or securing of periodical payments the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order.
(2) The power of the court under paragraph 1 or 2 to vary an order for the making or securing of periodical payments shall include power to suspend any provision of the order temporarily and to revive any provision so suspended.
4) As stated previously, it is very difficult to argue that a maintenance order should be varied. There would need to be clear evidence to show that the financial situation has completely altered from the time that the original order was granted. As this is at the court’s discretion it is very difficult to predict what the court will order. This is a difficult area as the original agreement was made with consent and therefore by agreement of both parties. As the order was made by agreement of both you and your ex-wife it can be difficult to argue that this should change without significant alteration of financial circumstances.
5) Contact and maintenance are separate issues in the law and therefore generally addressed in separate proceedings. Legally, one should not have an effect on the other. Your ex-wife will not be able to successfully argue to the court that she should restrict contact based on the reduction in maintenance however, in practice, this can often happen. The court will only order the contact provisions in the consent order to be varied if it is felt that it is no longer in the best interests of the children to have the amount of contact stated.
As you are aware, it is possible for you to apply to the court for a defined contact order or alternatively, to enforce the consent order which was put in place previously. Although this may prompt your ex-wife to apply to the court with regard to the maintenance issue, she could decide to exercise this option at any point regardless of your own application.
Alternatively, you may wish to suggest attending mediation to try and come to an agreement between yourselves with the assistance of an independent third party. It may be worth contacting National Family Mediation for further information on 01392 271610.
We hope this information has been of use to you. If you require more in depth advice then we would recommend that you contact the Child Law Advice Line on 08088 020 008.
Kind regards
Children’s Legal Centre
Thanks for such a full reply. I appreciate it. I will digest it and see what I can do. Thanks again. HM
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