This Is Money

I can't afford to keep up my ex-wife's maintenance payments in lockdown, can I get a divorce settlement payment holiday?

This Is Money logo This Is Money 28/04/2020 12:08:17 Sarah Davidson For Thisismoney.co.uk

Pubs around the UK have been closed for more than a month due to coronavirus © Mike Hewitt/Getty ImagesPubs around the UK have been closed for more than a month due to coronavirus

I run three rural pubs which are all closed because of COVID-19 and may not open again. 

I cannot afford to keep up my ex-wife's maintenance payments and don't want to get further into debt. 

Can the payments be reviewed as a matter of urgency?

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Sarah Davidson, of This is Money, replies: Your situation will not be unusual - millions of British business owners have seen their incomes fall through the floor in the past month.

As we don't know when lockdown will end, it's impossible for you to know when you can re-open your pubs and start to earn an income again. 

It's also not clear whether people will want to go out to socialise in pubs and restaurants in the same way as they did when we all thought corona was a brand of larger. 

The Government may well impose restrictions on social movement that gradually relax over time as people phase back into social interactions with one another. 

You haven't said what your income was before the lockdown came into force, but if you are self-employed, it was below £50,000 a year on average, and you have been trading for three years and filed tax returns, you may qualify for the self-employed income support scheme.  

It's possible, however, that even if you do qualify for a grant, you'll still be faced with lower income than you've had previously - and for some time. 

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In this case, what you can afford to pay to your ex-wife would need to be taken into account as well as how her own financial situation has been affected by the health pandemic. 

While you'll need to seek legal advice yourself, we asked a law firm's family law experts to give their view on your situation. 

a close up of a woman: Charlotte Coyle, Goodman Derrick LLP © Provided by This Is MoneyCharlotte Coyle, Goodman Derrick LLP a man wearing glasses and smiling at the camera: Fiona Wilson, Goodman Derrick LLP © Provided by This Is MoneyFiona Wilson, Goodman Derrick LLP

Fiona Wilson and Charlotte Coyle of Goodman Derrick reply: The short answer is that the level of payments that you are required to make can be reviewed and varied but it is unlikely that the courts would be able to deal with this on an urgent basis. 

Many other people find themselves in a very similar position to you, so it is anticipated that the courts will be inundated with applications to vary maintenance payments downwards because of financial hardship brought on by the coronavirus pandemic. 

You could be looking at several months for a hearing date even though the majority of courts are now dealing with cases remotely and accepting digital applications for the first time.

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Probably the best thing to try and do is have a conversation with your ex and see if some agreement can be reached on a reduced level of payment being made, even if just for the duration of the current crisis. 

If this isn't feasible, an option which may be much faster in terms of outcome would be to go to arbitration. 

This is a voluntary process - everyone has to agree to use it - but the decision of the arbiter is binding. 

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An arbiter is appointed to look at the issues in the same way the court would, but the likelihood would be that a decision would be made in weeks rather than months. 

Your solicitor would be able to find an arbitrator for you or the Institute of Family Law Arbitrators could also assist. 

"An option which may be much faster in terms of outcome would be to go to arbitration"

Arbiters are largely able to work remotely. Aside from the process being voluntary the one downside is that an arbitrator will charge a fee for their services. 

This means that although there is an upfront cost to meet therefore, in the long run costs could well be saved because the process is so much more speedy.

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Whether you use an arbiter or go through the courts, the most important thing to remember is that the findings will be made based on the evidence you provide so the more documentation you have to show you are unable to keep up with your maintenance payments, the stronger your case will be. 

In terms of documentation, you will need to show that due to closure of your pubs your income has significantly reduced and/or ceased in its entirety and this has impacted upon your ability to keep up with maintenance payments.

In addition, you will need to show that you are not eligible to receive any financial support or assistance from the government or other agencies during this time. 

a living room filled with furniture and a large window: 'You will also need to provide evidence that business expenses have reduced because of lockdown' - Goodman Derrick LLP (stock image) © Provided by This Is Money'You will also need to provide evidence that business expenses have reduced because of lockdown' - Goodman Derrick LLP (stock image)

You will also need to come up with a figure of what you think you can now afford to pay your ex-spouse. 

A good starting point would be to draw up a list of all your outgoings and income. If you arrived at your current maintenance payment figure through court proceedings or through negotiations through solicitors, the chances are you completed a Form E. 

We would recommend reviewing your outgoings list (often referred to as 'income needs') within your Form E again as well as your current bank statements.

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The arbiter or court will want to see evidence that you have attempted to reduce your other outgoings first before making your application to vary maintenance. 

For example, have you enquired about applying for a mortgage holiday if applicable? 

You will also need to provide evidence that business expenses have reduced because of lockdown, for example travel costs, marketing and advertising spend, waste and cleaning costs, sport and live TV subscriptions. 

"You will need to demonstrate that you are budgeting more carefully and reducing outgoings"

All discretionary outgoings and personal expenses will be scrutinised more heavily. 

For example, gym membership, clothes, food and drink expenditure, and online orders so remember this when you are reviewing your bank statements and outgoing list. 

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Again, you will need to demonstrate that you are budgeting more carefully and reducing outgoings.

Another factor the Court will look at is your capital and borrowing capacity. 

You mention that you don't want to get further in to debt but it could be argued that you could still meet maintenance payments from short-term borrowing or dipping into available capital to you. 

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However, if you are a self-employed publican your access to borrowing and using other sources of capital may not be readily available to you in the short term.

One important final point is that it would be advisable to ensure you include a request to remit - write of - any arrears of maintenance which accrue before the order is reviewed in the application. 

Stay at home to stop coronavirus spreading - here is what you can and can't do. If you think you have the virus, don't go to the GP or hospital, stay indoors and get advice online. Only call NHS 111 if you cannot cope with your symptoms at home; your condition gets worse; or your symptoms do not get better after seven days. In parts of Wales where 111 isn't available, call NHS Direct on 0845 46 47. In Scotland, anyone with symptoms is advised to self-isolate for seven days. In Northern Ireland, call your GP.

mardi 28 avril 2020 15:08:17

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