Maintenance orders can also be referred to as Periodical payments orders. When it comes to varying a maintenance order, the court has a broad range of powers available. These powers can be summarised as follows:
- The ability to increase or reduce the level of the periodical payments;
- The ability to suspend and then later revive periodical payments;
- The ability to extend the duration (or term) of a periodical payments order (unless the original order contained a bar, which would prevent the court from doing so);
- The ability to capitalise periodical payments, so that the payee receives a lump sum of capitalised maintenance; and
- The ability to discharge or terminate the periodical payments order in its entirety.
It is important to note that this article only covers variation of maintenance payable for the benefit of the ex-spouse; child maintenance is dealt with separately and parties should be careful to seek legal advice in respect of their own individual circumstances.
The key to any application to vary a maintenance order is that there must have been a change in either yours or your ex-spouse's financial circumstances in order to trigger the need for a variation. These circumstances will of course change on a case by case basis. There are several common reasons why a variation may seem appropriate.
Remarriage Can Block a Maintenance Claim
The first of these is cohabitation. If a person receiving maintenance (the payee) remarries, then they will no longer be entitled to receive maintenance arising as a result of their divorce from a previous marriage. But the law with regards to a payee cohabiting in a new relationship is not as clean cut as remarriage. On learning that their ex-spouse has begun cohabiting with a new partner, the person paying maintenance (the payer) may consider that a downwards variation, or even a termination, is appropriate. However, cohabitation of the payee may not in the court's view necessarily justify an immediate termination of periodical payments. The court is likely to want to see a prolonged period of secure and stable cohabitation before it considered terminating maintenance. This would be so as to avoid the risk of the payee having to face undue hardship were their periodical payments to decrease or come to an end before they were financially secure.
How Does a Change in Income Affect Maintenance?
Another reason that someone might seek to vary a maintenance order is as a result of a change in income. In the event that a payer received a significant pay rise, the payee may wish to seek an upwards variation of the periodical payments they were receiving if they felt that the current level was not enough to meet their needs. On the other hand, if a payee started employment and therefore increased their income, a payer may seek a downwards variation of the maintenance payable. However, the fact that the payee had taken on work would not necessarily mean the court would automatically apply the downwards variation. This is particularly in circumstances where there continued to be a significant disparity in the parties' income and earning capacity, despite the payee's new found employment.
A further employment related example of when someone might seek to vary a maintenance order were if the payer were to lose their job. If this was only likely to be temporary, the court may consider a suspension in the periodical payments to be appropriate, and that payments should then be revived once the payer had found further employment.
If a payer were to come into a lot of money after the maintenance order had been made, the payee may seek to capitalise their periodical payments. This means that going forward, rather then receiving their maintenance monies on a month by month basis (or however was provided for in the original order), the payee would receive one single lump sum, carefully calculated to represent the outstanding periodical payments owed for the remainder of the term within the original order. In this type of application, the court would need to consider whether it would be fair to both parties to capitalise the maintenance, and whether it was reasonably practical for the payer to make the lump sum payment.
Whatever the circumstances surrounding an application to vary a maintenance order, timing is crucial. If an application were to be made too soon after the original order, the applicant may find it difficult to justify why the original order should be varied. The applicant would need to show the court there had been a very significant and quick change in circumstances.
How to Apply to Vary A Maintenance Order
Like any application that relates to matrimonial finances, once an application has been issued, a disclosure process will take place to ensure that both the court and the parties have a full appreciation of both parties' current financial circumstances. However, in applications to vary existing orders, the court is not required to consider the case totally anew or in as much detail as it would do for a full financial remedy application. Instead, the court is only required to conduct an exercise that is proportionate to the requirements of that particular case. This means that, unlike in full financial remedy proceedings, if the judge feels he/she is able to make a final decision on the question of whether maintenance should be varied at the very first hearing in the process, then the judge must give that decision.
In the event that the judge is not able to determine the application to vary at the first hearing, then he/she will map out how the case should progress, which may include directions for the filing of further evidence from the parties and the listing of further hearings.
Of course, further litigation has the unfortunate side effect of escalating legal fees, a factor which needs to be weighed against the element of uncertainty that is intrinsic in an application to vary a maintenance order, given the court's broad discretion in deciding such applications. It is therefore vital that parties seek legal advice before embarking on an application to vary a maintenance order, as the court will look at the merits of each matter on an individual, case by case basis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at firstname.lastname@example.org.