Variation of a Spousal Maintenance Order Explained

Author:
Paul Hicks
Family Law and Divorce Solicitor
Date:
20/05/2019

During the course of financial remedy proceedings following divorce, the Court may have awarded a Spousal Maintenance Order. These usually take the form of regular payments by one person to meet the needs of the other person in divorce.

But due to a change in either person’s situation, it may become appropriate to vary a Spousal Maintenance Order by either increasing or decreasing the amount of the payment. This article aims to clarify the situation around varying a Spousal Maintenance Order in England and Wales.

For initial advice get in touch with our Family Law Solicitors.

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Varying a Spousal Maintenance Order

The Court has a wide discretion when considering an application to vary a Spousal Maintenance Order, which makes it very difficult to predict whether or not an application will succeed.

The welfare of any minor children is always the Court’s paramount consideration. The Court will then consider any changes in circumstances since the Spousal Maintenance Order was made, whilst also considering s25 of the Matrimonial Causes Act 1973 (which provides a checklist of factors by which the Court decides how to divide assets on divorce). It may be hard to convince the Court to make a variation to a Spousal Maintenance Order unless there has been a material change in circumstances.

The Court is also under a duty to consider whether a “clean break” is appropriate, whereby a Court Order will be made which ultimately ends financial ties between both parties. A number of other factors are also taken into deliberation, such as fairness, finances and financial mismanagement, and the balance of responsibilities between first and second families.

It’s worth noting that generally where the person who pays maintenance remarries, this doesn’t mean that their obligation to pay spousal maintenance to their ex-spouse stops. However, if the person in receipt of the maintenance payments remarries, the Spousal Maintenance Order automatically ends.

What Variations can be Made?

Spousal Maintenance Orders range broadly from periodical payments, lump sums by instalments, Nominal Maintenance Orders and Pension Sharing Orders. Depending on what Spousal Maintenance Order has been made, the Court may vary it in a number of ways. The following are just a few examples:

      • Periodical payments may be increased or decreased, particularly if the person who pays spousal maintenance finds that their income has significantly changed. However, if you’re making spousal maintenance payments and want to vary these on the basis that your ex-spouse is now living with another person, it’s important to note that spousal maintenance won’t necessarily be reduced or terminated on this basis.
      • Nominal Maintenance Orders are a common method used by the Court to keep alive one person’s ability to make a spousal maintenance claim at a later date. Nominal Orders can be for as little as £1. If you or your ex-spouse has a Nominal Order in their favour, then an application can be made to vary the Nominal Maintenance Order and for the nominal maintenance figure to be increased.
      • Capitalisation of spousal maintenance may be appropriate where the person paying maintenance has come into a large sum of money, or where a “clean break” is suitable. Capitalisation of a Spousal Maintenance Order simply means to consolidate periodical spousal maintenance into one lump sum payment.

This is a complex area of law and the above examples are just some of the ways in which a Spousal Maintenance Order can be varied. It’s also the case that certain financial orders, such as lump sum payments not by instalment, cannot be varied. For this reason, it’s worthwhile discussing your situation with a Family Law Solicitor.

The process of making an application to vary a Spousal Maintenance Order is the same as for Financial Remedy Proceedings, starting with the completion of either Form A or Form A1. If you’re currently making or receiving spousal maintenance payments and you think that the payments should be varied, then get in touch with our national team of our Family Law Solicitors.

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