If you’re divorced and you receive maintenance (as opposed to child support) from your ex husband, you may find the payment stops before your state pension kicks in. The state pension age has been rising to 65 for women born after April 5th 1950 and will rise to 66 by October 2020. Before 2010, women could get the state pension at 60 and that’s when many maintenance orders end. What can you do?
Are you affected by the rise in state pension age?
The first thing is to find out if you are affected by the rise in state pension age. I’ve written an article called The state pension age rise to 66; when can you expect your state pension or you can look on the government’s Gov.uk website where there’s a state pension age calculator.
SAVVY TIP: If you are going to receive your state pension later than you expected to when you got divorced you may find your maintenance runs out before your state pension kicks in.
Check your maintenance order
Many maintenance orders run for a specific term but can be extendable. However, some have a clause in them (called a Section 28(1)(A) bar), which means that the length of time maintenance is paid for can’t be changed.
SAVVY TIP: If your maintenance order cannot be extended, this limits your options if you want your ex to pay maintenance until your new pension age.
- If your maintenance order is extendable: you must apply for it to be extended before the term runs out. If you wait until it has run out before you apply, your application will be turned down.
- If your maintenance order is not extendable: you could ask for the maintenance amount to be increased or for the maintenance to be capitalized.
SAVVY TIP: If a maintenance order is capitalized, this means that, instead of receiving a regular income, you’re given a lump sum. Capitalising your maintenance order may help your finances because you’ll receive a larger amount of money (several years worth of maintenance) as a lump sum.
Can you change an existing financial order?
Courts are generally reluctant to change financial orders as they don’t like to go back and revisit agreements worked out at the time of divorce. However, maintenance orders can be changed to increase or decrease the amount payable, to capitalise the remaining payments or to shorten or extend a term (unless the order contains the s 28(1)(A) bar, in which case it cannot be extended).
- There’s no automatic entitlement to more maintenance. The fact that you will be worse off as a result of the rise in state pension age does not automatically mean you have the right to a change to your financial settlement.
SAVVY TIP: There was a case (Myerson v Myerson) in 2009 where an ex husband argued that the financial settlement agreed on divorce was unfair. He had been able to keep his shares and his ex wife was given cash and property. Shortly after the divorce, the shares plunged in value, but the judge didn’t change the financial settlement.
However, you could argue that shares could not be expected to be stable in value — by their nature. The situation relating to the state pension age is different because the law this change couldn’t necessarily have been predicted when the finances were agreed.
SAVVY TIP: The law to increase the state pension age for women from 60 to 65 was passed in 1995, and the law to increase it to 66 in 2011. Before these dates, there would be no reason to think the state pension ages would increase in the way they are.
What to do
In order to get an increase in maintenance or an extension to the term, you would have to show ‘need’ i.e. that you needed maintenance for longer.
- You should contact your ex husband. Explain that you will be left with a shortfall because of increases to the state pension age. David Allison, SavvyWoman’s divorce and relationship breakdown expert and a partner with Family Law in Partnership says: “Raise the issue at least a year before your maintenance term ends, and possibly earlier, so your ex husband has time to consider it.”
- If your ex husband will not increase your maintenance payments, contact your lawyer to see if your maintenance order is extendable.
- If the maintenance order is extendable, an application should be made to the courts to extend it. This must be done before the end of its term.
- If the maintenance order is not extendable, your lawyer may suggest applying to have it capitalized or to vary the amount you receive (ie increase the income payments).
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