Applying for variation prohibitively expensive

I have been trying to negotiate a variation of the amount of maintenance paid to my ex-spouse. We separated over 7 years ago, and the divorce was finalised around 5 years ago. We had two children together, who were 7 and 10 at the time of separation. They lived with their mother until two years ago, when relationships with her and her new partner (not, alas, cohabiting) broke down irretrievably and they came to live with me and my new wife.

The maintenance amount agreed was £680pcm, on the basis that this was deemed by the court to be a reasonable amount for the support of the children. It was to have been reduced, pound per pound, as the CSA (which still existed at the time) would have made an assessment - this would have avoided my having to apply for a variation if my income, on which the figure was initially based, had decreased. My understanding at the time was that this also meant that it would decrease automatically once the children reached the ages at which child maintenance would no longer be payable. However, the maintenance amount was not explicitly allocated as child maintenance, and my ex-wife continues to assert that it is owed to her as spousal maintenance.

I also agreed to continue paying the mortgage on the family home, a 3-bedroom house. My ex-wife agreed to make reasonable efforts to release me from the mortgage covenants. So far, she has not succeeded in doing so. Her employment history over the past 7 years has been patchy, and she has not reached a position of sufficient financial independence to take over the mortgage in her own name solely.

I transferred the title to the property to my ex-wife a couple of years ago, and in the strict terms of the orders that means that my obligation (to the court) to pay the mortgage ceased; however, I'm still on the hook with the mortgage lender. It happens that the mortgage amount plus life insurance premiums come to roughly the £680 that was agreed in maintenance, and on the advice of my solicitor I ceased (when the children came to live with me) to pay this directly to my ex-spouse and instead paid it directly to the mortgage lender and insurer. However, my solicitor's most recent advice is that in order to be in strict compliance with the terms of the order I should resume paying the £680 directly to my ex-spouse, and leave it to her to make the payments to the lender. If she doesn't for any reason, we both face the consequences of default.

The children have now been living with me for two years, and it seems high time that the financial situation was resolved. It seems unreasonable that I should still be paying the same maintenance amount when the children now live with me, and that I should still be tied to mortgage covenants on a three-bedroom house that is no longer required for them to live in. (I myself am renting a three-bedroom house in London, at considerable cost). My own income is quite good, but my new wife has at present no income of her own. We are about at the limit of what we can comfortably afford.

I am advised by my solicitor that an application to the courts for variation of maintenance, and to force my release from the mortgage covenants (by sale of the house if necessary) has a good chance of success. My main difficulty is that the cost of seeing such an application through the courts - estimated at around £15,000 plus VAT, or £18,000 in total, for solicitor's and barrister's fees - is absolutely prohibitive for me: there is simply no way I can afford this. An exchange of letters between my and my ex-wife's solicitors has shown that she is not open to negotiation, and wants to maintain her position of owning the house and being paid to do so by me (while also receiving rental income from her lodgers). She appears to believe that the children will want to return to live with her at some stage; given that my daughter, now 14, has not spoken to her in over a year, this seems unlikely. (There is a child arrangements order in place, recording by consent that our daughter lives with me. Our son, at 17, is now old enough to make his own decisions). Given her intransigence, I have little hope that a collaborative process will lead to a fair outcome. What on earth am I supposed to do, if I cannot afford to proceed through the courts?

The obvious (to me) solution is to be a litigant in person and take the process through the courts for no more than the cost of the court application fee (a few hundred pounds).

Perhaps I am a little blase about this, having weathered seven hearings in the last few years as a LIP against an ex who was, in the judges words, "vindictive and unreasonable".

I could not afford representation at all. Your solicitor may agree to an 'unbundled' service whereby they do not represent you, but give you occasional advice, while you do all the form filling and legwork. This is much cheaper.

You can also get direct access barristers if you are happy to do the paper work side but maybe don't want to present in court which is understandable and removing the solicitor from the equation can really reduce your costs.

You must have been through the process before to be now in this situation, there's a lot of help out there for LIP's and on the procedure side I found the court staff themselves were very helpful.

My very first impression is that you could, at least, have a look at whether you can get reduction in the child maintenance element on
the grounds that you look after the children. This may not require a Court hearing at all, but surely you should not have to pay your ex for the maintenance of your children if you are not supporting them ?

I personally have come across a few cases where you had the very situation that you described - namely an order which combined the spousal and child maintenance into one lump sum, and you could deduct from the maintenance payments any amount which you paid as child maintenance.

This kind of order is often made at the early stage in the proceedings, where the wife is without money because the CMEC ( or CSA as it used to be ) had not got round to making an assessment. This kind of order would routinely provide that when the assessment was made, the payer could deduct the CSA/CMEC assessment from the global sum, so that he didn't pay twice.

AsI said, I came across orders where the ' child ' was 22 and in full time employment, but because of the way the order was worded,
the father still had to pay.

The answer is surely to separate out the child maintenance element from the spousal maintenance element. I think it might
be worth having a chat with CMEC about this.

I doubt whether you'll get very far about release from the mortgage. Lenders are notoriously reluctant to release a
borrower. From their point of view, why should they ?

It might be possible to get a slightly improved version of the release clause, to make it clear that the obligation use
reasonable endeavours in a continuing obligation and if, for example, she inherited some money, it might be reasonable to expect her to discharge the mortgage.

But I certainly think there could be some mileage in the argument
that you should only have to pay what she needs to support herself and the child maintenance should be qualified and
excluded. As I say, I think a word with CMEC or a CAB would not
cost you and would be worth exploring.

LMM