Can a spousal maintenance order be varied?

In short, yes, but applications to vary (i.e. change) maintenance can be complicated (and disproportionately expensive) as there is no standard formula for calculating the appropriate financial provision on divorce.

In England and Wales, the approach adopted by our courts and judges is discretionary, and therefore any matter which proceeds to court carries with it litigation risk (you may or may not succeed).

The court has a duty to consider all the circumstances of the case and to consider a range of specific statutory factors set out in section 25 (when the matter is first considered) and section 31 of the Matrimonial Causes Act 1973 (MCA 1973) on variation.

On a variation application the financial order from the original proceedings is not going to be heard again in its entirety and this is not an opportunity for either party to have a ‘second bite of the cherry’. It is important to note that in an application to vary the spousal maintenance, the party receiving maintenance will not be entitled to further capital from the payer through the back door of their day-to-day budget requirements (although the court can, in certain circumstances, roll up future payments into one sum which once paid brings the maintenance liability to an end).

Considerations of the Court

The Court has the power to vary, discharge, suspend or revive any previous order for spousal maintenance. In using this power, the Court must have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates. The Court do so with reference to the section 25 factors which are summarised as follows:-

1. The capital and income resources available to the parties, either existing or reasonably foreseeable. This includes both of your earning capacities, any increase in that capacity which it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire.
2. Details of the financial needs of the parties, including;
   1. Their standard of living;
   2. Their ages and the length of the marriage;
   3. Any disabilities (to include any relevant health issues of either party);
3. The Court also considers the following additional factors:
   1. The respective contributions of each party;
   2. The conduct of each party (although only in exceptional cases). Conduct in financial proceedings is only taken into consideration if it would be inequitable for the Court to disregard it.
   3. Any benefit either party will lose as a result of the divorce (this largely relates to pensions and will not be relevant in an application to vary spousal maintenance, particularly as a pension share has already been implemented following the original proceedings).

How do the Court consider the appropriate level of spousal maintenance?

If you want to make an application to vary spousal maintenance, you will need to show a change of circumstances from the time the original spousal maintenance order was made. A change of circumstance can include, for example, either party having a new job with a different salary, ill health, a new family with additional commitments, retirement, an unexpected windfall and so on. A receiving party may wish to argue there has been no change.

Assuming there has been a change, questions to consider may include:

1. What are the receiving party’s reasonable needs? These will be looked at carefully and will not necessarily be taken at face value if they appear to be inflated or guestimates. Be expected to justify what you are spending so it can be shown you have considered the figures carefully rather than simply having provided estimates. Look at historic bills and justify why you say your needs are what they are.
2. Can those needs be met from their own income and resources? If they are then that should be it and there should be no need for spousal maintenance as maintenance should be referrable to need.
3. If not, then a question may be what income could or should be generated. So the receiving party maximising their earning capacity and if not what steps can they take to do so and are they or should they be receiving some contribution from third parties?
4. If the receiving party has a genuine need which cannot be met from their own income, what can the paying party afford to pay them to meet that shortfall in whole or in part? This requires an analysis of the paying party’s actual or expected income.
5. If the paying party can afford to pay the receiving party, then if there is a ‘need’ they should be required to meet the required shortfall? If not, again there may be issues over what income is being generated (for example, what steps can the paying party take to maximise their earning capacity?). This may justify a reduction or dismissal of spousal maintenance. The reduction may be to a nominal sum to keep the receiving party’s claim for spousal maintenance open (although a recent case described such orders as a “symbolic irritant” as such orders are, in fact, rarely brought back to court.

There have been various cases which has set out the approach to be taken in a variation case as set out above. The case of Wright v Wright [2015] went to the Court of Appeal. At the appeal, it was noted that the joint lives maintenance order (i.e. an order for spousal maintenance to be paid until the death of either party) had been appropriate at the time of the divorce as there was no certainty of the wife’s earning capacity at the time. The Court concluded that a downward variation of spousal maintenance was justified following an investigation of the wife’s earning capacity which demonstrated that she could, with training, support herself without recourse to spousal maintenance. This case confirmed that it is necessary to examine the budget of a party receiving spousal maintenance alongside their earning capacity and that there is an expectation for them to make necessary adjustments in becoming self-supporting. This case demonstrates that the Court appear to be far more willing to look at bringing spousal maintenance claims to an end earlier than they would have previously, particularly if it can be shown that the receiving party would be able to adjust without undue hardship.

In considering the ability to vary or discharge spousal maintenance, it will be important to consider the remaining term of the spousal maintenance order and the level of maintenance that would be paid to the end of that term. The possibility of capitalising spousal maintenance should be explored (i.e. ‘buying out’ a claim for spousal maintenance).  This will often factor into the proportionately of pursuing a claim and the advice given to reach an out of court settlement and achieve a clean break.

Next steps and exploring out of Court settlements

The onus will be on the paying party to bring an application to the Court to vary maintenance if they want it reduced.  Simply stopping paying risks enforcement proceedings.  Applications may sometimes be met with a cross-application by the receiving party enforce the existing maintenance order (and potentially an upward variation). Before making an application to the Court, consideration should be given to reaching an agreement using non-Court dispute resolution methods such as mediation, and solicitor led negotiations or even simply discussing matters with your former spouse directly. Arbitration will provide a speedy and cost-effective option to avoid the time and prescriptive process required if matters are dealt with through the courts.

The legal position on variation of a spousal maintenance order has many layers and it is therefore important to seek independent legal advice tailored to your individual circumstances and to explore the possible outcomes including suitable and cost-effective ways to keep matters out of court.   A colleague recently arbitrated a case where the change of circumstances was triggered at the start of August and with focussed preparation the case was heard in arbitration at the end of September.  That process would have taken many months to get through the court system and all the time the legal taxi meter would have been running.  The parties achieved certainty of outcome saving significantly legal costs as well as limiting the ongoing stress of litigation.

Charlotte Plowman is an experienced family law specialist within our Horsham team. If you would like further information regarding spousal maintenance and any variation of the same, please feel free to contact Charlotte or another member of our dedicated team for a confidential discussion about your personal circumstances.