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Renegotiating ex-spousal maintenance support amid living crisis

Toby Yerburgh

Toby Yerburgh

Up. Up. Up. Utility bills, mortgages and tax. Everything up. Everything except many people’s net incomes, which, if they are rising, are certainly not keeping pace with runaway headline inflation rates.

This presents a very specific problem for those who blithely agreed to submit to an order annually increasing the spousal maintenance they pay to their ex-spouse by the rate of inflation.

For years this has been seen as a relatively benign way to ensure that an ex-spouse does not have to trouble the courts with a variation application some years down the line because their original maintenance package no longer meets their needs due to the effect of inflation.

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Accordingly, many have been persuaded to agree this or had it imposed upon them by the courts. The latter is not invariable and, as with so much in this discretionary area of law, varies from court to court and sometimes from case to case.

But now, those who have 'celebrated' the anniversary of their original maintenance order over the past few months have found to their horror that they are required to pay, with immediate effect, up to a further 10 per cent on top of the amount they were previously paying. 

So for someone previously paying £3,000 a month, the increase would be £3,600 a year. The equivalent of paying well over a month’s extra maintenance a year out of net income that may well be set to decrease due to likely tax rises.

This may well be a financial blow too far, particularly for those who have a second family to pay for. 

Renegotiating 

So what is the solution? First, do not panic. Maintenance is always potentially variable. If there has been a material change in circumstances, a court is unlikely to say that someone should pay maintenance that financially cripples them. Your ex-spouse will, if they seek advice, also be advised of this.

Accordingly, if the maintenance you would have to pay under a court order is no longer affordable or fair then you should try to negotiate a change.

Several of my clients recently have done exactly that. They have reached out either directly to their ex-partner or via their solicitors or used a mediator and made a convincing case for reducing the increase in their maintenance obligation to, say, 5 per cent rather than 10 per cent upon the basis that the former was unaffordable, unfair and would likely necessitate a variation application. 

That said, very few people actually want to have to make a variation application as, apart from in the largest cases, the irrecoverable costs are likely to outweigh the benefits. 

But in certain cases, such an application could also be used, for example, to argue that an old lifetime maintenance order should be brought to an end or have a term imposed. In such cases the costs may be worth it.