Maintenance: paying and receiving in times of financial difficulties

The financial backlash from COVID-19 may be felt more keenly by parents and divorcees who bear a recurring obligation to pay maintenance for their children and/or spouses/ex-spouses.  If you are such a parent or divorcee, and your income has been affected to the extent that paying the court-ordered maintenance sums becomes challenging, you may wish to consider some of these available options.

What can I do if I am the one who has to pay maintenance?

Negotiate a temporary reduction in maintenance with your spouse/ex-spouse

If the communication between you and your spouse/ex-spouse remains open and cordial, you should approach him/her with a proposal for the maintenance to be reduced during these difficult times.

Be honest and candid when explaining why you are, for the time being, not able to afford the maintenance sums. Refrain from being vague (e.g. simply asserting that your business is not doing well, or that you had to take a pay cut etc). Always remember that your children and/or spouses/ex-spouses are legally entitled to the maintenance sums. If your spouse/ex-spouse is willing to accept a temporary reduction, he/she is technically waiving part of his/her legal entitlement. And in deciding whether or not to do so, your spouse/ex-spouse should reasonably be given as much information as possible. Support your request with bank statements, pay slips, or notices from your employers etc where possible.

Do not approach your spouse/ex-spouse with a request to indefinitely reduce the maintenance. Provide a fixed time period during which the reduction will take effect. If you are not sure when you can recover financially, at least give an estimate, and let your ex-spouse know that when the estimated period comes to a close, you may have to re-assess the situation to determine if the reduction needs to continue.

Understand that these are tough times for everyone. While you are facing financial strains, your spouse/ex-spouse may also be facing the same concerns. Moreover, he/she is continuing to foot the bills and expenses for your children under his/her care. You should bear these circumstances in mind when proposing how much and for how long to reduce the maintenance.

If you can come to an agreement with your spouse/ex-spouse on the amount and the duration of the reduction, it is best to record this agreement in writing. An email or text message that is acknowledged by both parties should suffice. If you prefer to be more cautious, you may approach a lawyer to prepare a signed agreement.

There is no need to formalise an agreement of such nature in court as long as both you and your spouse/ex-spouse are prepared to abide by it in good faith.

If agreement is not possible, obtain a variation order from the courts

In situations where there exists some degree of mistrust or animosity between spouses/ex-spouses, or where large amounts of maintenance are concerned, you may apply to court to “endorse” the agreement which will constitute a variation to the existing maintenance order ( a variation order).

Similarly, if attempts at negotiating with your spouse/ex-spouse fall through, or if the relationship between parties makes any sort of negotiations impossible from the outset, you may apply to court to obtain a variation order.

Our courts are empowered to vary any agreements or orders for maintenance. This includes reducing maintenance sums. However, the court is extremely cautious when it comes to making such variations. A person applying for maintenance to be varied must prove that he or she is experiencing what is called a material change in circumstances, and that this material change makes it impossible for him/her to continue paying the maintenance sums that were previously ordered.

Not all sorts of financial strains amount to a material change of circumstances. There is no hard and fast rule, and the court will analyse every application on a case-by-case basis. In general, what the court does is to look at your current circumstances and compare it with the circumstances you were in when the existing maintenance order was made. The court will also consider the financial needs and circumstances of your spouse/ex-spouse and your children.

The court has previously allowed reduction in maintenance sums when the party obliged to pay the maintenance lost his/her job, became bankrupt, or when his/her business failed entirely. These events are considered major financial setbacks. On the contrary, a salary reduction may not amount to a material change in circumstances, unless the reduction is permanent and substantial in quantum.

In addition, financial difficulties caused by oneself cannot be grounds for a seeking a Variation Order. For example, if I voluntarily quit my job or indulge in large and unnecessary spending, I am unlikely to obtain a variation order because these new circumstances are my own doing.

What can I do if I am the one who is receiving maintenance?

Perhaps you are the one entitled to receive maintenance for your children and/or yourself, but your spouse/ex-spouse has not been paying maintenance, or is late in paying maintenance, or has only been paying some of the maintenance.

If attempts at negotiating with your spouse/ex-spouse fall through or if negotiations are not possible, you may apply to court to obtain an enforcement of the maintenance order ( an enforcement order). If your application is successful, the court will order your spouse/ex-spouse to pay you the outstanding maintenance owed.

An enforcement order may include your spouse/ex-spouse being sent for financial counselling or your spouse/ex-spouse’s employer being ordered to deduct a portion of your spouse/ex-spouse’s salary to pay the maintenance owed. Non-compliance with the enforcement order may even result in your spouse/ex-spouse having to perform community service or being sent to jail.

Seek legal advice if unsure

In conclusion, if COVID-19 has caused you or your spouse/ex-spouse to be unable to fulfil his/her maintenance obligations, you may be deciding on whether to apply for a variation order or an enforcement order. If you intend to do so, you should approach a lawyer, who will then assess your plight and advise you on the merits of your case.

Going to court involves filing a formal application (court papers, an affidavit, and supporting documents are required). Your spouse/ex-spouse is entitled to resist the application through his/her own lawyers. The court will then conduct a hearing to decide whether to grant your application. You may be required to attend the hearing together with your lawyers to give evidence.

Given that our courts are only hearing critical cases during this Circuit Breaker period, applications for variation orders or enforcement orders may take longer than usual to process. If you need to apply for such an application urgently, you should approach a lawyer to discuss your options.

 

This article is written by DC Law LLC. The contents of the article do not constitute legal advice. If you would like to consult us, we are contactable by email at info@dclaw.com.sg or by phone at +65 6589 8118.

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