I did a blog on spousal maintenance and even without the email spam offers of spells and eternal happiness, it was an incredibly well read piece and is clearly a subject which raises lots of concerns and uncertainty in equal measure: both for the paying and receiving party.
It left me thinking it might be helpful to blog about the circumstances in which spousal maintenance may be changed: so, here goes!
Changes to spousal maintenance
As you may have read in my previous blog on spousal maintenance – or periodical payments – orders have the potential to be varied (in other words, changed) by either the paying or receiving party.
What does this mean? Put simply, in variation proceedings (or better still through a focussed dialogue using a dispute resolution model payments can be reduced, increased, rolled up into a one-off payment (i.e. capitalised) or dismissed altogether.
The fact an order can be varied may cause feelings of uncertainty and/or vulnerability for both the payer and the receiver. For example, imagine a scenario where you have been receiving maintenance for a number of years and have relied upon it to meet your weekly outgoings. Your ex then says he/she has to stop paying you because he/she has lost his/her job. The impact of this will be difficult enough but what if they just resent paying and unilaterally reduce it or simply stop paying? Come what may your “income” is at risk and outside your immediate control.
Spousal maintenance is inherently uncertain. Neither party can’t control what happens in the other’s life and so it can often feel like having the rug pulled from under you without warning. A difficult divorce won’t get easier if dealing with this issue.
Life is unpredictable and it is simply impossible to build into a maintenance agreement/order protection for all possible scenarios in the future. Quite simply, if the money isn’t there the ability to pay maintenance will be affected.
So, what circumstances might warrant a variation application?
All manner of things could make the original order outdated or inappropriate. These may include changes in either party’s financial position; the start of a new relationship; the ending of a new relationship, the birth of children etc.
Significant changes to either party’s financial position might include losing their job or starting a new one on a much lower salary, ill health, disability or retirement. Conversely, it might include a new job with a much higher salary or inheriting or winning a large sum of money.
If the receiver starts a new relationship which would involve cohabitation, the court has to look closely at the financial circumstances of the new partner and what they ought to contribute to the household. If the new partner is poor and has no job for example, then it follows that their contribution will be minimal.
However, the court can infer a theoretical income based on what it is likely he/she would be earning if they had a job.
If the payer starts a new relationship it might mean that there are more resources coming into the household, therefore increasing what might be available to pay to a former spouse. Furthermore, if the receiver ends a relationship and no longer lives with their new partner the household income they were expected to receive is unlikely to be available in the future, which could also warrant an increase in the amount they receive.
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Circumstances where the payer has a new family to support may justify a variation application but in my experience this tends to be quite a difficult position to advance. The court will still be concerned, primarily, with regard to the children of the first family if they are under 18.
What is clear is that neither party can apply for a variation without being able to show that there has been a change in circumstances from when the original order was made.
If you’re having significant difficulties managing on the amount of money you have, or if the income of your former spouse has increased significantly, then it may be possible to have payments to you increased.
In the same way, if you make payments to your former spouse and your income position worsens, you can ask for the level of the payments to be reduced.
In either scenario, a variation application is not something to be embarked upon lightly and it is very important that you do not simply stop paying without first reaching agreement with your former spouse or following an order made by the court. If you stop paying this could lead to an application to enforce the original order and payment of arrears with possible cost consequences.
Maintenance payments do, however, cease automatically if the recipient remarries or enters a new civil partnership.
On an application for variation the court can consider capitalising spousal maintenance. This would mean the payer paying a lump sum to the other to achieve a clean break. If this is an option, the court would consider whether the original order should be varied downwards or indeed upwards and then a formula is used to calculate what would be an appropriate lump sum payment depending on whether the original order was intended to be paid for a specified term or on the basis of the parties’ joint lives.
If you and your former spouse cannot agree a change in the payments then mediation or the collaborative process should be considered in the first instance. However, only a court can vary the order and so if you reach another agreement with your former spouse it is important that you apply to the court for this to be endorsed. Otherwise, the original order will keep running which could lead to difficulties over arrears.
Proceed with caution…
Before proceeding with an application, it is worth understanding the potential risks and scenarios which may affect the outcome for you:
- There is uncertainty. The court has a wide discretion so predicting what will happen is not usually possible – even for experienced lawyers!
- Timing is critical. If a variation application is made too soon after the original order it may be difficult to justify why it should be changed unless there has been a very significant (usually unexpected) change in circumstances;
- Costs are a significant factor when considering a variation application. Costs can quickly become disproportionate to the amount of maintenance in issue;
- Court proceedings are intrusive and emotionally draining;
- The payments may increase or decrease, so getting legal advice as to the merits of your case at an early stage is crucial;
- It appears to me that courts are becoming less keen on parties receiving long term substantial maintenance and I would suggest that attitudes are hardening. Those people with maintenance orders made years ago may face a less generous approach if a review comes before the court.
As we have seen, putting forward an application for variation is not simple. The most important piece of advice I can give clients on this issue is to seek legal advice at the earliest stage and take time to consider all of the possible outcomes.
For more guidance about your specific circumstances, please do not hesitate to contact us.
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