My ex wife and I agreed a court order in January. For budgetary reasons, my wife wanted an undertaking that I would pay £1000 per month in child maintenance, with any difference between that and the 25% "CSA" calculation being paid once a year in October (I am self employed) "while I can afford it". No spousal maintenance order as she is cohabiting.
I have abided by this to date. My company''s financial year ended at the end of March with around £12000 of profit remaining in the account. In effect, this means that £3000 is hers and this would therefore normally be paid in October.
My problem is this. I now expect to/fear that i will be out of work for 3-4 months (I work as a freelancer in IT and there is little work around).
My ex wife is not unreasonably asking for "her" share of last year''s profit. But if I give her that and subsequently end up out of work for 3-4 months, I will not be able to meet the £1000 a month obligation.
I am worried what would happen if she then took me to court for failing to comply with that undertaking. After all, my solicitor advised me to use the phrase "while he can afford it". Will the court look at my personal bank account and conclude that actually, because I have my share - £9000 in there, I can afford it, when in effect that is what I will be relying on for the next few months, and has already been subjected to a 25% deduction for maintenance?
My view of the money in the account at year end is different to hers. She sees it as accrued income from a year now gone to which she is entitled. I see it as rainy day money to be drawn on this year. And in this situation I cannot fulfill both requirements of the court order.
First reaction is
An undertaking is more or less the same as a Court order and failure to comply with it can have potentially serious consequences
If someone in regular employment falls on hard times, and has to pay ongoing maintenance, it is not reasonable to expect him/her to continue paying the maintenance at the same rate, and an application for downward variation or even suspension/cancellation is required.
You just can''t take matters into your own hands and stop paying. You have to ask for a variation. It may be possible to do this by agreement. In your case, I guess you would have to apply to have the undertaking modified or even discharged.
Where someone is redundant who has capital, as a general rule (s)he is not expected to fund maintenance out of capital, but the payer may need to rely on savings to tide him over a period of unemployment. Of course, the recipient of the maintenance will feel the pinch as well and it may - I stress may - be reasonable to expect the payer to pay some maintenance out of savings, but only for a short period. It all depends on what is reasonable.