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Being placed on furlough leave or sadly losing employment as a result of Covid-19 could well have an impact upon separated parties who have a written agreement or court ordered arrangement in respect of alimentary obligations, whether that be child aliment or aliment for a spouse or civil partner.

Child aliment

For separated parents who have made provision for the payment of child aliment within a formal written agreement, it is important to note that such an agreement will be legally binding upon them.  Depending on the terms of the agreement there could be implications for the paying party if the stated amount of child aliment is not duly paid on time or if agreement for an alternative arrangement has not been reached.    In ordinary circumstances where there has been a material change in circumstances of either party or the child it is open to the parties to seek a formal variation from the court.  However at the current time the Scottish Courts and Tribunal Service (SCTS) have confirmed that all civil business, other than specific urgent business, would be adjourned until at least August 2020.  Accordingly, in the event that either parent’s income has been affected due to the ongoing issues, communication and agreement between the parties will be key.  Parties are encouraged to work together and they could try and agree between them an appropriate variation of a payment on an interim basis, however we would also recommend that any change or variation is documented in a formal supplementary agreement or at the very least recorded in writing between the parties in some way and it should be noted that what is agreed will be a temporary measure only. 

Where parties do not have a written agreement in place but the child aliment payment has instead been set via a Child Maintenance Service (CMS) assessment, the general rule which ordinarily applies is that if a parties’ income changes by 25% then CMS must be advised and they will reassess the position accordingly.  In these current circumstances then it can be assumed that if the paying parent’s income is reduced by 25% or more as a result of the Coronavirus pandemic, that CMS will apply the same rules in this regard.  It should be remembered however that if circumstances change further and the paying parent’s income resumes or increases again that a further assessment might be made, and parties are obliged to advise CMS of any material change in circumstances.   CMS should be able to advise on specific individual circumstances.

Aliment for spouse or civil partner

As with child aliment, in the event that separated spouses or separated civil partners have a written agreement or court ordered arrangement for the provision of payment of aliment, difficulties could arise for the paying party being able to meet that obligation if their income has been affected by the current circumstances.  It is again extremely important that both parties communicate and attempt to agree what is to happen temporarily where income has been affected, particularly having regard to the current situation with the courts. 

We would note that unilateral changes to payments should not take place even where a party has been affected by the Coronavirus outbreak.   If agreement is not reached as to any variation, even a temporary one, a paying party could face court action for recovery of payments once the civil courts fully resume dealing with all civil business.  Discussions should therefore be encouraged and matters addressed as co-operatively as possible.  A supplementary agreement could be prepared to formalise any temporary arrangement between the parties, or again some form of written communication between the parties could act as a record of what has been agreed in the interim.

Reaching agreement willingly could assist both parties through these uncertain and challenging times, and perhaps even beyond that. 

 

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