How do you vary a Spousal Maintenance or a Child Maintenance Order?

Maintenance usually takes the form of regular payments made by one party (say, the husband) to enable the payee (say, the wife) to meet their own needs and the needs of any children of that family. In England, the two main types of maintenance are child and spousal.  Where there is doubt that a maintenance order would be paid, it is possible for a property or other capital to be used as a guarantee that the order will be paid so that if the payer defaults on his payment then he will have to surrender that capital to make up any arrears. In practice this it is quite rare.  Please click here http://www.blanchardslaw.co.uk/blog/how-does-the-family-court-assess-spousal-maintenance to see where I have written previously about the powers available to the Court regarding maintenance orders.

Maintenance is usually awarded in addition to lump sums, transfer of property and pension sharing orders.

This blog is about varying maintenance and I deal with the spousal and child maintenance below.

What is Spousal Maintenance?

These are payments awarded by the court to be paid by one spouse to another.  They can be for

a substantial amount or they can be for what is known as what is “nominal order” (referred

to as “5p a year”) in the financial agreement or order made by the husband and wife upon their

divorce.  This amount is not actually paid but is the mechanism by which the Court keeps

maintenance claims alive just in case the payee spouse falls on hard times and need to apply for

a proper amount to support herself and/or any children of the marriage.  These orders can be

lifelong, i.e. they are paid for the whole of the payer’s life, or they can be made on a “term”

basis, and come to an end at a particular point in time, such as one of the children of the marriage attaining a particular age or finishing their education.   If the parties have only been married for a very short period of time, and there are no children, sometimes the richer spouse will pay maintenance for about a year, to enable the less well-off one to get back on their feet financially. This is particularly the case where one earns considerably less than the other, or gave up work in anticipation of building a family.

How can a Spousal Maintenance Order come to an End?

Maintenance Orders for spouses always terminate upon the remarriage of the payee spouse.  Sometimes it can be agreed that maintenance also terminates if the payee spouse starts to cohabit with another person as man and wife, but this does not happen very often and recent court decisions have indicated that cohabitation is merely a fact to be taken into account when considering whether maintenance ought to be paid.

Maintenance orders also come to an end upon the death of the payer. However in those circumstances the payee ex-wife would be able to make a claim against the former husband’s estate for the maintenance to continue to be discharged.

There is also a positive duty on the court to effect a clean break between the parties, thereby ending financial obligations towards one another. This duty is imposed by legislation but conflicts with the actual and judge-made tendency towards generosity towards the less well-off spouse. This is what makes England such a desirable place to divorce for many international couples, who may have little connection with the country in any event.

How do you vary a Spousal Maintenance Order?

Generally the only ground upon which the Court will consider a variation application for a spousal maintenance order is if there has been a financial change of circumstance.  This could be a change in either party’s means, not just the payer, although in practice most applications are founded upon this basis.  Normally the payer has lost their employment, or their income has reduced.  Sometimes they have formed another relationship and had more children, which affects their ability to maintain their “first family”.

On a variation application, a judge can vary the maintenance order up or down, suspend or terminate it, capitalise it into a one-and-for-all lump sum and order any arrears to be discharged.

These variation applications are notoriously difficult to call, as the judge has a wide discretion in this situation. This discretion makes it an uncertain area of litigation for divorce lawyers and clients alike. It is good practice and sensible to attempt to resolve things between the parties prior to instigating court proceedings, as costs orders are visited quite regularly on the losing party.  This can be quite hard to bear as most of the time neither party is in a position to fund the litigation in the first place, let alone pay the other ex-spouse’s legal fees should they be unsuccessful. Potential applicants should therefore consider approaching family solicitors or divorce mediators.

Normally an application will need to be made by way of Form A which attracts a Court fee currently of £240.00, then each party will need to complete a Form E disclosure document, of some 25 or so pages, which is time consuming and also quite confusing.  These are not applications to be undertaken lightly, and legal advice from family solicitors should be the first port of call before any moves are made towards the court.

 What about Child Maintenance?

Child Maintenance is mostly governed in England now by the Child Maintenance and Enforcement Commission (CMEC), which has taken over from the CSA.  CMEC now encourages parents to reach their own agreements on maintenance although actually that agency alone has jurisdiction for dealing with child maintenance in England and Wales. However the divorcing couple can still obtain a court order for child maintenance as long as they agree on the sum, and as long as CMEC/CSA has not been previously involved in their case and has made an assessment.  If there is a Court Order, then the parties must wait twelve months and then give two months’ notice prior to applying to CMEC/CSA. More information can be obtained here www.childmaintenanceoptions.com

There are other situations where the CSA does not apply:

  • where the parties are not yet separated and still living under the same roof,
  • where the child or the payer lives outside the jurisdiction
  • where the Court’s input is required because the payer’s income is above a certain threshold imposed by statute
  • where the child suffers from a disability
  • where there are school fees to be paid.

If the child maintenance is payable through a CSA Assessment, a variation can be applied for through the “review” process provided by legislation.  However under new laws, it is now only possible to apply for a review if the payer’s circumstances have changed by 25% or more.

If the child maintenance is payable by way of Court Order, then the payer or payee can apply to court for a variation of the maintenance in much the same way as spousal maintenance set out above.  The forms are different for child orders but the court similarly has a wide discretion.  However the court will consider what CMEC/CSA would come up with had it been dealing with that particular application.

 CONCLUSION

Spousal Variation Applications are a minefield, and traditionally the courts have been quite slow to reduce or terminate a maintenance order unless there are strong & justifiable reasons for so doing. However the tide may be turning in that recent case law has stated that judges should take more notice of their statutory duty as set in the Matrimonial Causes Act 1973 to bring to an end the financial links between the parties as soon as possible by way of clean break.

Whatever you do, speak to divorce solicitors prior to embarking upon such expensive and uncertain litigation.

If this article has posed some questions for your particular circumstances please do contact us on 0845 658 6639 or by email at pd@blanchards.co.uk.

Our divorce guide may also help you, it’s free, and you can get your copy at the bottom of the page here

© Punam Denley, January 2013

Blanchards Law is a niche family law practice with divorce solicitors, mediators and collaborative lawyers.

Can we help you? Please call us on 0845 658 6639 or email us at pd@blanchardslaw.co.uk