Variations and breaches

This is also for a friend...

What happens once someone goes to court, settles out of desperation and then later can no longer pay- papers submitted for variation- but how long is the wait.

Have a friend who got divorce several years ago. Settled out of immediate financialdesperation just to have an end to it all, but as a civil servant he has seen a 25% cut in pay and has started a new family with his now wife (who works full time). Meanwhile his ex, went back to work full time (after being told it was absurd that she be asked to do this by the judge at FDR) and is bringing home 100K a year. She is mortgage free, and is receiving a hefty CM and SM- yet she refuses to tell him that she is now working.

She is now clearing 6K a month with her work, and the SM
His CM goes towards paying their kids private education
She got the house which he paid for with his inheretence and there is a mesher on it.

He told the courts he is going to breach his order and papers are filed. What happens next?

Might I add- after the divorce he had no deposit as was so in debt from not wanting to disapoint the kids and trying to keep everyone happy during the 2 years of seperation. Also he had hefty legal expenses

He now has a heavy mortgage, a new baby, and after travel etc- is left with 700 for anything that is not a fixed cost- after her fixed costs- she still has in excess of 4.5K

Any arrears for maintenance stipulated in a court order may be enforced like any other debt - arrestment of pay, charging orders, committal to prison etc. However, a judge has a duty to ensure the debtor has the ability to pay and won''t be left living below a subsistence level.

When an application for a variation of spouse maintenance is made the court requires disclosure and considers evidence of both parties financial position afresh. Once it has been settled how much the payer of maintenance can afford to pay the court will consider if they have the ability to pay off any debt owed.

Tell your friend not to just stop paying completely but to pay some to show the courts he is will to pay but cant afford the amount in the order. If negotiation has failed then apply to the courts is a similar process to AR in that both parties will be expected to complete form E to show their financial situation.

If your friend is sure that his ex''s financial position has improved alot since the court order whereas his position is now untenable, then he has some chance of success, but he will need to consider that if he is unsuccessful then he might have to pay the ex''s costs.

He is sure, her position was published online and they both work in the same sector. They are both barristers, although now she is a judge.

You can imagine how dire his situation must be if he has to breach a court order.

Application was lodged as well as telling them he has to breach.

Once he proves this, do they backdate the fact he has been over-paying and she never told him her new circumstances?

Not sure but as an earlier poster said (think it was Fiona) they will look at how much of the outstanding amount needs to be paid considering the new situation.

It doesn''t matter how sure he is, the courts require documentary evidence.