Divorce settlements are a working, breathing animal. Just because the decree nisi is granted, does not mean the financial order is set in stone for life. If a party who is ordered to make payments, simply cannot afford those payments, what happens? Blood cannot be extracted from stone.
Common sense prevails, it is possible to apply to court to have the order amended based on current financial circumstances as can be seen in the case below.
An individual’s financial circumstances can change dramatically post-divorce and the courts retain power to vary orders to make allowance for unforeseen events. In one case, the High Court reduced a husband’s immediate maintenance liabilities by more than £20,000 a year after he fell on hard times.
Following the couple’s divorce after a 12-year marriage, a judge ordered the sale of the family home and payment of a £1.6 million lump sum to the wife from the proceeds. The husband was also directed to pay £65,000 a year in maintenance to the wife and their son, along with the latter’s private school fees.
The wife, although a mathematics graduate, had devoted herself to caring for the child and had a very limited earning capacity. The husband, who had reached retirement age since the divorce, had never worked and had relied entirely for his income on a family foundation established by his father.
Since the divorce, the family home had failed to sell for the £6 million that had been expected and the husband had elected to buy the wife out by paying her a £1.6 million lump sum. He had borrowed that money and was incurring interest on the loan of £64,000 a year. The sums available to him from the foundation had dwindled sharply and he was under intense financial pressure.
In the circumstances, the Court agreed to reduce his maintenance payments to £42,000 a year. However, the difference between that sum and the maintenance originally ordered would be tallied up and the balance paid to the wife once a sale of the property was achieved. The Court refused to waive payment of almost £40,000 that the husband had built up in arrears of maintenance and that sum too would be deducted from the sale proceeds and paid to the wife.
