Can I change a maintenance agreement if I'm struggling to pay because I'm on a pension?

In Plain English

If you have a registered maintenance liability and you are receiving a social security pension or benefit, you may be able to apply to the Registrar to have your liability no longer enforced under the Child Support (Registration and Collection) Act 1988. This is called a "low-income non-enforcement period." The Registrar can then vary the Child Support Register to reflect that the liability is not currently being enforced.

However, there are some exceptions. If the court order or agreement already considers periods of unemployment or reduced income, you may not be able to apply. Also, even if the liability is not being enforced, the other party can still take action to recover any debt you owe.

If your maintenance agreement has been approved by the court, it can be varied if the court is satisfied that, at the time the agreement was approved, your circumstances were such that, taking into account the terms and effect of the agreement, you would have been unable to support yourself or herself without an income tested pension, allowance or benefit, according to the Family Law Act 1975.

Detailed Explanation

Several sections of the Child Support (Registration and Collection) Act 1988 address scenarios where a payer's income is reduced, specifically when they are receiving a social security pension or benefit.

Section 37B outlines the process for a payer to apply to have their maintenance liability no longer enforced under the Act if they are receiving a social security pension or benefit, or have made a claim for one. This initiates a "low-income non-enforcement period."
Section 37B(3) specifies that this application is not available if the original court order or agreement already accounts for reductions in payments during periods of unemployment or substantially reduced income.
Section 37B(4) details when the low-income non-enforcement period begins, which is generally the day the application is made or an earlier day determined by the Registrar, coinciding with the start of receiving the pension or benefit.
Section 37B(5) explains when the low-income non-enforcement period ends, such as when the payer stops receiving the pension or benefit, or when they no longer satisfy the prescribed income test.
Section 37B(6) & (7) mandate that the Registrar must vary the Child Support Register to reflect the beginning and end of the low-income non-enforcement period, effectively pausing and resuming enforcement of the liability.
Section 37B(7A) clarifies that even during a low-income non-enforcement period, the payee can still pursue legal action under section 113A to recover outstanding debts.

Additionally, the Family Law Act 1975 addresses the modification of maintenance agreements:

Section 87(4A) states that the approval of a maintenance agreement does not limit the power of a court to make an order in relation to the maintenance of a party to the relevant marriage if the court is satisfied that, at the time the agreement was approved, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party would have been unable to support himself or herself without an income tested pension, allowance or benefit.
Section 87(4B) states that where subsection 87(4A) applies in relation to an approved maintenance agreement, section 83 applies in relation to the variation of the agreement, in so far as the agreement makes provision for the maintenance of a party to the marriage, as if the agreement were an order made by consent under this Act by a court in which the agreement is registered or deemed to be registered.