You may have a court order providing for spousal maintenance, or sometimes child support. The law recognises that circumstances change and for this reason maintenance is always variable.
A person either paying or receiving maintenance may apply to the court for the maintenance to be reduced, increased or dismissed altogether. However, a variation application is not something to be embarked upon lightly. This note sets out some things to take into account.
Timing is critical
If a maintenance variation is made too soon after the original order it will be difficult to justify why it should be varied unless there has been a very significant and quick (and usually unexpected) change in circumstances.
You must also ensure that you do not leave it too long from any change in circumstances before making a maintenance variation application. The legal test for whether maintenance can be reduced or end altogether is whether this can be done without causing “undue hardship” to the person receiving the maintenance. It can be harder to adjust where maintenance has been paid for a very long time.
Cohabitation is not akin to re-marriage
If your former husband, wife or civil partner is receiving maintenance from you and has started to cohabit with a new partner then this does not mean that your maintenance obligation will automatically end.
Their new partner’s circumstances will be of relevance in so much as the day to day outgoings may have reduced, which would potentially justify a reduction in their maintenance. Cohabitation does not automatically lead to claims ending altogether.
Have you complied with the terms of the order?
The court order to be varied will come under close scrutiny including whether you have complied with all of the relevant terms, for example providing for the payment of lump sums or transfers of property.
The court procedure for the variation of maintenance is very similar to the financial remedy proceedings following a divorce. You would be required to give full and frank disclosure to the court of your financial circumstances. Some consider this to be an invasion of privacy in circumstances where your lives are likely to have moved on significantly since the time of the separation and divorce. However, it is necessary.
The Proportionality of Costs
The legal costs of maintenance variation applications can quickly become disproportionate to the amount of maintenance in issue, especially the amount being varied.
It is important to assess at the outset the likely gain to you of the reduction or dismissal of maintenance against the likely legal costs.
If your financial circumstances have improved since the time of the order, or those of the receiving party deteriorated then the maintenance may be varied upwards.
It is important to take legal advice as to likely outcomes.
If you are considering applying to vary a maintenance order please contact a member of our team.