Variation of existing maintenance has been a hot topic in the press in recent years with several cases hitting the headlines and sparking interest from many who receive or pay spousal maintenance.
Despite the explosion in interest, it remains a difficult and complex subject that must be treated with respect if an application to vary an existing maintenance order is being considered. Certainly, applications should not be entered into lightly and advice should be sought before the process is commenced. Equally, if you are receiving spousal maintenance and your former spouse or civil partner is threatening a variation application to terminate or reduce your maintenance payments, then you should legal advice as early as possible so that you know what your options are.
This blog has been prepared to provide some initial information that many may find useful.
What can the Court vary?
The Court has the power to do as follows:
- To terminate, increase or reduce the level of the maintenance payments.
- To suspend and to reinstate maintenance payments.
- To extend the term of a maintenance payments order unless the original maintenance order contained a bar known as a Section 28(1A) bar preventing the term from being extended.
- To capitalise maintenance payments which allows the party receiving maintenance to be paid a one-off lump sum instead of on-going maintenance payments.
It is also possible for the Court to vary child maintenance orders in certain circumstances albeit advice should be sought since the vast majority of child maintenance cases would be considered by the Child Maintenance Service (CMS) instead. Advice should be sought if you have queries regarding a child maintenance order and variation of the same.
When can a maintenance order be varied?
For a maintenance order to be varied, there must have been a change (usually a significant one) to the financial circumstances of the party paying maintenance or the party receiving maintenance. The passage of time is not enough on its own to justify the variation of a maintenance order, even if maintenance has been paid for a long time.
If you believe your circumstances or those of your former spouse have changed significantly and you are paying or receiving maintenance under an existing financial order and wish to explore whether it might be capable of being varied, then you should seek legal advice to explore the merits of your case and the options for progressing it towards a variation.
I set out below the most common reasons for variation applications being made to the Court. Do note, this list is not exhaustive and there will be other changes in circumstances which justify a variation to the original maintenance order.
Changes to income
One of the main reasons a variation of maintenance is sought is because the income of the party receiving maintenance falls or increases, or the equivalent happens to the person paying maintenance.
The Court will certainly consider varying a maintenance order in such circumstances but the change of income position will need to have been in place for some time and be likely to be a permanent change rather than a momentary “blip”. So, for example, if the party receiving the maintenance loses their job, then a variation of the maintenance upwards will only be justifiable if they are unable to secure employment at a similar level reasonably promptly. If they can secure new employment on similar terms quickly, then a maintenance variation is unlikely plus the Court will expect them to make every effort to seek new employment. The same would be true if the paying party were to lose their job as well albeit it may, in extreme cases, be accepted that an immediate reduction or suspension of maintenance payments is justified whilst the paying party seeks new employment.
If the paying party suddenly began earning far more income than previously, then the Court would consider whether the maintenance payable to their former spouse should be varied upwards. Much would depend on whether the recipient needed an increase in maintenance so, again, this would need to be considered before an application to vary upwards was made to the Court. The fact that the paying party is simply earning more is not usually enough on its own.
As an alternative outcome, if a paying party receives or builds up a large amount of money, then it is sometimes possible to apply to vary the maintenance order so that it is capitalised meaning that a single lump sum payment is made to the receiving party in lieu of on-going maintenance. This outcome may be attractive to both parties in the right circumstances since the recipient has the benefit of an upfront payment which they can whatever they wish with, and the paying party achieves a financial clean break. That said, if the maintenance payments are high, then the lump sum payable can be significant, and it may not be viable to pay such a large amount in one go without impacting the paying party’s wider finances. The recipient must also bear in mind that they will then be solely responsible for meeting their own outgoings in the future. Legal and financial advice in such circumstances are likely to be crucial.
New relationships, cohabitation, and remarriage
Often when a new relationship is formed or either party begins to cohabit, the maintenance may be reviewed by them, or the other party and a variation considered.
If the receiving party remarries, then the spousal maintenance will end automatically. If, however, the party paying maintenance remarries, then the maintenance must continue unless they are able to show the Court that they can no longer afford to continue paying maintenance at the original level or even at all. The same would apply if the paying party begins cohabiting as well.
If the recipient of the spousal maintenance begins cohabiting, then a variation application may be tempting to the paying party. That said, they will need to consider whether the relationship has been in place long enough to be considered stable and long-term. If so, an application to vary may be justified but care should certainly be taken on this point.
Risks of applying to Court to vary maintenance orders
One of the biggest risk factors in variation applications is cost proportionality. If, for example, you are the recipient of maintenance payments and you wish to vary them upwards, then you will need to consider how likely it is that the payments will be increased and weigh this against the potential legal costs involved in a Court application. If the costs may be more than, or even similar to, your variation application, then there may be no benefit in pursuing the application. That said, it is possible to ask your former spouse or civil partner to pay some or all your legal costs if you succeed in your variation application albeit such cost orders are not guaranteed.
Additionally, if a variation application is made to the Court and is unsuccessful, then the Court may award the other party their legal costs by the “losing” party. This means that the losing party may end up paying all their own legal costs and some, or all, of the other party’s legal costs. This could be devastating for their financial position if the legal costs are high.
Ultimately, the risks associated with any Court application, particularly those where there is real uncertainty with the potential outcome like variation applications, mean that legal advice is crucial before embarking on an application. This is because the court will look at the merits of each matter individually and good legal advice will enable you to weigh up the merits of your specific case and the prospects of success.
What should I do next?
The issue of variation of maintenance is a complex area of the law and one where legal advice is likely to be essential. If you would like to discuss the variation of existing maintenance payments or you are being threatened with a variation application and receive maintenance, then we at Summit Law would be happy to talk through your options with you. The family team at Summit Law have experience and expertise in advising on, and dealing with, these cases involving variation of maintenance. We will be able to help and support you by providing friendly and bespoke advice tailored to you, your case, and your needs.
Our family team can be contacted on 020 7467 3980 or by e-mail at firstname.lastname@example.org.