“Can’t Pay, Won’t Pay”: An interview with Ann Hussey QC on Applications to Vary Financial Orders in a Covid-19 climate

Manders Law Managing Partner, Mary-Ann Wright, speaks to Ann Hussey QC on the pressing questions that many worried clients who are subject to interim or final financial orders are asking, in these uncertain times. Whether you are payer of spousal maintenance, or a recipient, the top tips below will be of relevance to you.

About the Interviewee

Ann Hussey QC specializes in high net worth divorce, separation and pre and post nuptial agreements.  She is instructed by husbands, wives and separating unmarried couples and advises offshore asset holding entities. Ann regularly lectures on financial remedies both in the UK and internationally.


What is the most important thing to remember if you are facing, or are contemplating making an application to vary maintenance payments downwards?

The first “headline” point to remember is that whether you are a recipient seeking more, because you have lost a source of income, or you are the paying party seeking to pay less, or nothing for similar reasons – the court will make findings based on EVIDENCE so with your legal advisor look at what that entails and have it ready.


Your solicitor tells you that the Courts are struggling, and hearings are being cancelled in light of the COVID-19 outbreak. What is the best course of action to follow?

This is my second “headline” point – it is undeniable that the courts are currently struggling.  Some have closed altogether.  Some are trying to deal with applications remotely, but many do not have the technology to deal with matters remotely while ensuring fairness to the parties, so the current default position is to adjourn hearings.  Inevitably this is going to lead to a significant back log building up for cases already is the system. This means there will be a delay in getting new matters heard once we are out the other side. 


Are there any alternatives?

Yes – dealing with cases either by way of arbitration, mediation or private FDRs is working well, but these do come at a cost, due to the fee of the adjudicator. Consider the alternatives seriously though, as it may well be a cost worth incurring in the longer run.


What should you consider before going down either the litigation or arbitration route?

As a first step attempt a genuine dialogue with your ex-partner, having first discussed matters with your adviser.  Communicate with your ex, they might even understand your predicament and agree to work something out consensually, even if it’s on an interim basis until “lockdown” is over and we are out the other side.  Just think what you would do if you were faced with being shown a letter from your ex-partner’s HR department, either making them redundant or cutting their hours.  It’s not their fault.  We are in this together and if the salary has stopped, or been scythed, that is a reality you may simply have to face.


If you are made redundant or placed on short hours with a salary or bonus cut, or your ex – partner shows you evidence that this is the case, what should you do?

If you are the paying party and you are either made redundant or put on short hours, look at the affordability of what you are paying under the court order.  Remember your own expenses would have changed as well and may well be commensurately less.  No more travel expenses, work clothes etc.  Can you take a mortgage holiday? If not, why not?   What other expenses can be scythed?  Gym membership, eating out etc. all these discretionary items may need to go.  So, the outgoings list on your Form E is going to be looking very different, as will your bank statements.  Think very carefully about taking a red pencil to your own budget before thinking of cutting off maintenance payments or drastically reducing them.

Also, look at your capital and borrowing capacity; could you keep maintenance going out of capital or short-term borrowing?   The decision to deploy these will of course depend upon whether you are in a sector where you will be able to be re-employed.


What about the receiving party?

These are all points which apply equally to the receiving party.  If your maintenance only makes up part of your income, and you have a lost your job, you may want to consider seeking an uplift to cover that short fall.  You too will need to consider whether economies can be made, and how different your income needs now are.


What about the unscrupulous “won’t payers” who seek to take advantage of the COVID -19 outbreak to justify non- payment or payment reductions?

It may well be that there are the unscrupulous “won’t payers”, who seize on the current crisis as an excuse to reduce or cut off maintenance.  In that situation make sure you track their social media profile.  It may seem obvious, but these platforms are busier than ever and may provide the telling piece of evidence that maintenance is being diverted to online shopping purchases, boasted about in posts.  Also, what are the business web sites saying?  Some companies are very busy because their products are in demand.  Even in these dark days there appears to be very little doom and gloom being advertised. Businesses are often promoting services through different options and giving the positive “open for remote business” message.


As we know the Court cannot indulge in “crystal ball” gazing, but as you are being interviewed today, what are your current predictions?

It’s a fast-moving situation and both clients and their legal advisers need to keep abreast of developments and communicate. One of the big problems is that we simply don’t know when we will come out the other side, or what our global world will look like.  Currently markets are in free fall, the property market has stalled and who knows what the value of anything is (apart from loo rolls)?

On a more serious note, the economic gurus are trying to predict what the world will look like.  Different countries will come out of this at different times.  Some countries have benefited from the aggressive historic growth of China and will continue to do so when it decides to exercise its purchasing power once again. Many businesses will benefit if they can supply what China wants.  There is a global monetary paralysis at the moment, but the “lockdown” will end. If your former partner is positioned in an industry poised to benefit from the release of money into the economy, then there is the possibility  to vary upwards if you are on the flip side.

Remember variation applications either down or up are highly fact specific and will need to be evidence backed. 

For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here

Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal position.

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