Family & Divorce Partner, Harriet Errington provides expert commentary in The Financial Times looking at the following scenario...

Q: 

My utility bills have almost doubled and I can no longer afford to pay them with the maintenance my husband gives me. On top of this, the children’s school fees have risen. I have a job, but I took a career break to have children and am on a lower salary than my ex. My former husband says he is struggling himself and is unwilling to increase maintenance payments. Can I sue him for more money?

Family & Divorce Partner, Harriet Erringtonsays:
As the cost of living continues to rise, an increasing number of people are struggling to meet their outgoings. For those who rely on maintenance payments from their former spouse, it may be tempting to seek an increase in the monthly payments. This can be difficult — though by no means impossible — to achieve. However, it is not without risk. 

It is important to remember that spousal maintenance is distinct and separate from child maintenance. If your ex-husband earns less than £156,000 per year (gross) you can apply to the Child Maintenance Service (CMS) for an assessment. Any new assessment made by the CMS will then override any child maintenance provision in the order. This might be a way to increase your monthly income without the expense of further litigation. In the absence of an agreement in relation to increased spousal maintenance payments, you would have to make an application to court to revisit this aspect of your order. To succeed, you would need to show there has been a “material” change in circumstances. 

Put plainly, you are not permitted a second bite of the cherry. The focus is generally on how your circumstances, or those of your ex-husband, have altered since the original order was made. For example, the fact that you took a career break to have children will, presumably, have been factored into your original settlement and is therefore unlikely to be as relevant a consideration on an application to vary your maintenance. The court will expect both of you to disclose full details of your current income and outgoings when determining whether an increase in maintenance is appropriate and, crucially, whether it is affordable for your ex-husband. If you are able to prove that there have been fundamental changes to your needs and your ex-husband’s income has increased (contrary to his assertion that he too is struggling) then you will stand a better chance of achieving an increase in your maintenance. However, herein lies a risk. If your ex-husband’s income has not increased and if he is able to persuade a court that he is also struggling to meet the maintenance payments on top of his own increased costs, you may find it difficult to achieve an upwards variation. 

Furthermore, he might attempt to reduce or — worse — terminate his payments altogether. You should also be aware that the unsuccessful party may be ordered to pay the other party’s legal costs at the end of the case. If your original court order included an obligation on your ex-husband to pay the children’s school fees, that obligation would not normally be capped, so your ex-husband will be obliged to continue to meet these in full, irrespective of any increase. In the event that he fails to do so, you would have to apply to the family court to enforce the order. There is always a lot to consider in situations like this and the answer is rarely straightforward. 

Before making any key decisions, it is prudent to get your financial ducks in a row and prepare an accurate schedule of your outgoings to assess the monthly deficit. Where possible, you should also try to gather information regarding your husband’s financial circumstances, for example using LinkedIn and other public resources. Then, at this point, it is worth seeking some legal advice from a specialist family lawyer so that you can weigh up whether a return to court is appropriate. 

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