Divorce & Inflation: Am I Entitled to More Maintenance?

Why you need to claim your indexed maintenance

The usual situation

When all is going well, there should be an annual routine:

• Dig out your order and check the date when the maintenance uplifts by inflation.  You should be able to spot the part of your order that you are looking for. The sort of clause you are looking for will probably look like this:

Annual variation in periodical payments The periodical payments set out in paragraphs 13-16 shall be varied automatically on the “variation date”, which shall be on the date of the payment due in April 2023 and at yearly intervals afterwards. The change in the payments shall be the percentage change, if any, between the UK consumer prices index during the most recent 12 month period preceding the variation date for which index data has been published.

It tells you the crucial information

• When the variation takes effect.
• What index to use.
• What monthly figures in that index to read off.
• A bit over a month before the uplift date, visit our calculator here or call your lawyers and get the numbers as they will be following this automatic variation.
• Write a clear but kind note to your ex and ask for the uplift, giving the new numbers that you believe are due.

Child support arrangements

Of course where maintenance is being paid through the Child Maintenance Service, it has its own system that stands often in replacement for the court order system: Around thirty days before the anniversary of the start date (“the effective date”), the CMS contacts HMRC to receive the latest data on the paying parent’s income. It will then send both parties its calculations on what sum should be paid from the review date and there is an opportunity to contact the CMS. Changes to this number in the intervening period are usually only possible where there is a 25% change in the paying parent’s income but sometimes a “variation” will be needed [see CMS information here https://www.flip.co.uk/news-resources/toolkit/ for more details].

But for other people

For some people

• Either there was no indexation.
• Or you have not been claiming the indexation that you have been entitled to.

There was certainly a period up to say the end of the noughties when NOT having indexation was done as a tactic … the thought being that you could actually get bigger increases by having no indexation and thus having a reason to bring the case back to court.  Since then (and with the courts increasingly ungenerous in the awards that they are making) staying away from court seemed to have more to recommend it.  Indexation is common.  It might be excluded from the order in circumstances where it is intended for the maintenance award to come down over time – and here the erosive effect of inflation achieves this.

In these sorts of situation, you are likely to want to take advice on the likelihood of the court’s responding positively if you now make an application.

Where you haven’t been claiming your uplifts, you will want to insert the data into the calculator to see what your order would need to be now to give you the same as what was intended then.  It is often pretty startling.  A £100 order from even five years ago would be 25% higher now (£124.86) and almost half (£11.85) of that increase would have happened in the last year (before then inflation was more benign).  As if anyone needs reminding in these days of punishingly increased shopping and utility bills, inflation should be much on all of our minds.

Applying to increase the maintenance

This is where things get tricky.

If an application for a variation is made, the court must make an assessment: payments should only continue for the period that it should take you to adjust without undue hardship to the end of the maintenance payment.

• Predicting how a court will discharge that duty is far from easy;
• Making that assessment when the full information is not known and when the paying party has yet to lay out their arguments is very difficult; and
• In many situations, even when the full information is known, the best barristers can’t always second guess which way a court will jump and what sort of order the judge will impose.

Arrears & variation

It is very hard to gather in arrears that built up over 12 months ago.  So if you have not been writing and asking for the increases, you should not assume that you are going to be able to gather in all the missing periods that you should have had.  In the example above over the five years since our summer of 2017 £100 per month order, this would have been £645 (ie. you have received £6,000 but should have had £6,645) – but of this only the last 12 months is really in the frame to be pursued, around half of it, £300.  The rest has been lost.

But the situation is actually worse than this.  By appearing to show that you have not needed this maintenance, you are surely opening the door to an argument that “far from now being able to pursue the arrears, the maintenance should be reduced to the £100 per month that you appear to have been coping on.”

Other life changes will always be considered if a variation application needs to be considered – see here   https://www.flip.co.uk/varying-maintenance-payments/

The team at Family Law in Partnership has extensive experience in helping to manage cases concerning maintenance payment variation applications. Please contact us for expert help and advice.