Child maintenance and the cost of living; Can I vary child maintenance or school fees because of the cost of living crisis?
If the cost of living crisis means you cannot afford the child maintenance or school fees ordered in your divorce settlement or if you are the recipient and the amount ordered is no longer sufficient to cover your expenditure, you may be able to vary your existing order.
Because of the rising cost of living, your income might be affected by high energy prices, a business closure, redundancy, or bankruptcy meaning that an order made at time of your divorce for child maintenance or school fees is no longer affordable.
If on the other hand you are the recipient of child maintenance (the payee) the level of maintenance and any annual variations have probably not kept pace with the increase in your energy bills and other costs of living.
So, what can you do if you find yourself in this predicament?
Check the terms of your child maintenance order
Your Child Maintenance order may include clauses confirming when you can and cannot apply for a variation.
Your order may also include an automatic increase in the level of child maintenance on the anniversary of the order each year. The annual variation will usually be linked to changes in the Retail Price or the Consumer Price Index. An order can also provide for the child maintenance to increase by the same amount/percentage as the payor’s gross or net salary each year. Your order might also include recitals setting out the assumptions on which the order was made.
An order for child maintenance (excluding a school fees order and an order attributable to a child’s disability) will prevent an application to the Child Maintenance Service (CMS) for a child support assessment for a period of one year.
Once the child maintenance order has been in force for more than a year, the payor or payee can apply to the CMS for an assessment. Once a child support calculation has been made it will automatically end the court order for child maintenance.
Before deciding to apply for a CMS assessment in place of the court order we advise you to check the amount the CMS are likely to assess your maintenance at. You will need to know the payor’s gross income to do this. A child maintenance calculator using the CMS assessment calculation is available in our support hub Our Support Hub – Watson Morris Family Law.
Variation and enforcement applications
If the payor and payee cannot reach an agreement, a variation application can be made under section 31 of the Matrimonial Causes Act 1973 (MCA 1973).
If the payor hasn’t complied with the order, the payee will have the option of taking enforcement action. If a payor can no longer afford to pay the ordered level of maintenance or school fees, they will need to apply to vary the order. The payee’s obligation to make payments under the existing order continues until ordered otherwise.
A payee will need the court’s permission to enforce maintenance arrears that are more than 12 months old. Timing on when to apply for enforcement is therefore important.
Enforcement will not be possible if the court has ordered a stay or suspension of the order on an application from the payor.
Can I vary an undertaking to pay for expenditure for my children?
Your financial order may include undertakings or agreements for you to pay for expenditure for your children. For example, you may have agreed to pay for items such as school uniform, sports equipment or for hobbies and clubs.
The court has no power to vary the terms of an undertaking. The court does however have the power to grant or refuse an application to be released from an undertaking and can also consider accepting a further undertaking in different terms.
What the court considers if you apply for a variation to child maintenance or a variation to a school fees order
The court has a broad discretion. The first consideration is the welfare of any minor child (s.31(7) MCA 1973). The court will also need to consider any change in circumstances since the original order as well the parties’ existing financial circumstances. The overriding objective will be fairness.
How to apply for a variation in child maintenance or school fees order
The procedure for applying for variation in child maintenance or to apply for variation to a school fees order is very similar to the procedure to apply for a financial remedy order. An application to vary will however follow a shortened fast-track procedure. Disclosure is provided in Form E1 (a shortened version of Form E and contains less information about a party’s capital resources).
There is no financial dispute resolution hearing unless it is a complex case, and one is requested.
How to apply for enforcement of a financial order
The enforcement application is started by filing an application notice and statement setting out what the payee is seeking, i.e., payment of child maintenance or school fee arrears and any relevant calculations. The application will normally need to be made to the same court that made the original order.
Once the court has issued the application, the court will send a notice to each party to attend a hearing. At the hearing, the parties will be questioned on their evidence and the court will decide whether to enforce the order.
Is it worth applying for a change in child maintenance or school fees because of the cost of living?
The cost of litigation will add pressure to both parties already tightly squeezed income and resources and therefore both the payor and payee will need to think carefully before issuing proceedings.
Using mediation and other alternative dispute resolution options should be considered. In some situations, alternative dispute resolution will not be appropriate, and the court’s intervention will be needed.
We recommend taking early legal advice to understand your options.
For more information on varying or setting aside a financial remedy order download our client guide:
or visit our webpage Financial Settlements for Married Couples – Watson Morris Family Law
Written by Caroline Watson
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