Ex has applied for variation in CM

Moominmamma

I've recently received a letter from the CMS informing me that XH has applied for a variation in his CM payment.

Apparently he's applying for a variation due to contributing to the mortgage on the FMH "with no legal obligation to do so", however although I live in the house with our children it has been ordered through the court that he remains named on the mortgage for the next five years and pays spousal maintenance in the form of a proportion of the mortgage over that period. The amount of spousal maintenance / mortgage contribution has been decided upon whilst taking into account his CM payments, so if the variation is granted it will effectively be nullifying the court ordered SM payments :mad:

I'd be hugely appreciative if anyone could cast any light on the possible success (or, hopefully, otherwise) of his application. I have of course spoken to CMS who weren't incredibly helpful.

HoneyNutLoop

What is the exact wording of the relevant bit of your court order?

Comms69

And have your circumstances changed?


Spousal maintenance often comes with caveats.

Moominmamma

Thank you both for your responses, I guess the relevant bits are as follows:

The applicant undertakes to pay periodical payments for the benefit of the children of the family in accordance with the current rates or any other child maintenance service rate as may apply until each child shall respectively reach the age of 18.

The respondant undertakes to use the monthly periodical payments paid to her to settle the mortgage secured upon the family home.

SM is due to be paid for 5 years, and is paid direct to me not to the mortgage company, the only caveats in the meantime are the death of either one of us, my remarriage (which definitely isn't on the cards!) or "further order of the court"

unforeseen

That doesn't seem to mention SM.

Moominmamma

The SM bit just says he'll pay me £X per month into X account with payments beginning in March '18 and ending in February '23 unless one of us dies or I remarry.

My understanding is that unless he's contributing directly to the mortgage on a voluntary basis (which he categorically is not!) then it has no bearing on his CM payments, but CMS are currently unable or unwilling to confirm this.

HoneyNutLoop

The section you’ve quoted doesn’t appear to be spousal maintenance but a court order for child maintenance. When was the order made?

HoneyNutLoop

Also, can you clarify are you being paid the child maintenance amount ordered by the court plus the spousal maintenance ordered by the court plus the CMS amount?

MataNui

None of what you have posted so far looks like spousal maintenance. In fact from the bit you have posted this bit in particular:
"The applicant undertakes to pay periodical payments for the benefit of the children of the family in accordance with the current rates or any other child maintenance service rate as may apply until each child shall respectively reach the age of 18." actually suggests that he may have a valid argument since variations do most definitely meet this "current rates or any other child maintenance service rate as may apply".


And from what you are saying your dead wrong about saying it nullifies the SM bit of the court order. The two items look to be separate - from the limited bit you posted (see the bit of your order i quoted earlier). He pays you some money that you are obliged to pay against the mortgage and pays the current CMS rate as they may apply. If he applies for a variation and gets it (no guarantee he will at all) then as long as he is still paying you the agreed amount for the mortgage it would seem like he is 100% complying with the court order (providing CMS buy it).


Edited~
Your best bet is to challenge the variation based on his payments being ordered by the court and not in fact being voluntary. Variations can be difficult to get anyway and as long as you give them enough information (like the full court order) there is every chance his bid will fail.

Moominmamma

Thanks for your responses. To clarify the consent order was finalised in April and he's currently paying the ordered amount of SM, and then CM as calculated by the CMS.

MataNui I have indeed sent a copy of the Consent Order to the CMS to show that he is not paying voluntarily but I agree that the wording regarding rates is somewhat ambiguous.

HoneyNutLoop

If the only amounts he is paying you are the amount calculated by CMS and an amount you can show is spousal maintenance under the terms of your court order, then he won’t be able to claim a variation for paying your mortgage because he’s not.

It doesn’t matter that your court order instructs you to use your child maintenance to pay your mortgage. I don’t think this would even count as a valid term, as your child maintenance is being determined by CMS and not the court, so the court doesn’t have any jurisdiction over that element anyway. But certainly CMS will not consider maintenance it has calculated your ex should pay as being eligible as a special expenses variation. That would just be daft.