Ups and Downs: Variation of Maintenance Orders
News article published on: 18th June 2009
When an ancillary relief order is made it may contain provision for one party to pay the other spousal maintenance (or “periodical payments”). This is usually for a defined amount per month or it may be expressed as a percentage of the payer’s income. The level of maintenance will be based, amongst other things, on the parties’ needs as assessed at the time the order was made and their financial resources. But what if the circumstances of the parties change after the order is made? For example, what if the payer loses his or her job? Or the payee finds that they are struggling to make ends meet?
In these situations it may be possible to seek an order from the court to vary a maintenance award. The amount can be varied (upward or downward), the term may be changed, arrears discharged, the order may be temporarily suspended or the court may exercise its power to capitalise the remaining maintenance payments. The application to vary can be made by either the payer or the payee.
Applying for Variation
In order to make an application to vary maintenance, there are various elements which need to be satisfied:
- There must be an existing maintenance order in place, even if it is only a “nominal” maintenance order.
- The payee must not have remarried because on remarriage maintenance payments end.
- The applicant must satisfy the test laid down in statute which is that the court will take into account “all the circumstances of the case…(and this) shall include any change in any of the matters to which the court was required to have regard when making the order.”
Applying the Test
As is often the case in family law, the court has wide discretion to decide when or if to allow a variation of maintenance. The first consideration will be of the welfare of any child under 18. Other relevant factors will be the relative financial resources of each party, their ages and their needs. The court will also want to know what has happened in the intervening years since the ancillary relief order was made, how things have changed and why they have changed.
The court also has a duty to consider, on an application for variation, whether or not there should now be a clean break. This could be achieved by capitalising future maintenance by the payer paying a lump sum in lieu of future maintenance payments.
Very broadly, case law has seen a general trend towards allowing variation of maintenance and allowing payees to increase the length of maintenance orders where they were made for a specific term only. The focus has shifted from the payee having to argue for any continuation of maintenance to the payer having to argue against the continuation of it.
The court may also take into account the extent to which the person reliant on the maintenance has tried to become financially independent, although this will depend on factors such as their age, resources and whether they were in a position to become independent. In the case of North v North  EWCA Civ 760 the court limited a wife’s claim to increase her maintenance because she had not tried to obtain gainful employment and had frittered away her money on a serious of unwise business decisions and a lavish lifestyle since the divorce. Nevertheless, the court still awarded her an increase of maintenance because it said that she could not be blamed for the businesses she invested in going bust.
This year, two cases in particular considered the matter of variation of maintenance. Both were cases where the applicants were trying to increase the amount they received. In McFarlane v McFarlane  EWHC 891 the applicant was successful in arguing that she should receive an increase in her maintenance payments. Mr McFarlane’s income had steadily increased and Mrs McFarlane said she needed more money to meet her own and the children’s needs. Her maintenance was increased based on a percentage of the husband’s income rather than on the basis of a defined amount per annum but the court limited the maintenance to 2015 which is when the husband is due to retire. The court left it open to Mrs McFarlane to apply again in 2015 if she is still not financially independent. Critics might argue that this leaves little incentive to people like Mrs McFarlane to become financially independent when she has the option of seeking further resources from Mr McFarlane. The case is somewhat unusual in that Mr McFarlane was, and is, extremely wealthy and so there was a surplus of income available to be shared between the parties. It was also relevant that Mr McFarlane had remarried and his second wife was also a high earner contributing towards the household and therefore there was more “surplus” to be divided.
Another recent case on variation this year was Hovorostovsky v Hovorostovsky  EWCA Civ 79. In this case, the payer’s income increased dramatically while the payee was accepted to be without an earning capacity and a lifelong dependent of her former husband. An increase of the level of periodical payments was ordered by the court. However, the court did not accept that the payee who was the former wife in this case, needed to be compensated for having given up her career as a dancer prior to her marriage to her husband in 1989. In contrast, in the case of Mrs McFarlane, above the court held she did deserve to be compensated for giving up her high flying career as a solicitor to look after the family when she got married.
Applying to court for a variation of maintenance obviously has a cost element attached to it and this needs to be balanced against the prospects of being successful in any application. It is important to take advice on this aspect.
An alternative option to litigation might be to try mediation through a family lawyer or to try negotiation through solicitors.
If there are children involved, it is important to remember that spousal maintenance is separate from and usually additional to child maintenance, which all non-resident parents are obliged to provide. More information on child maintenance can be found at www.childmaintenanceoptions.com and at www.csa.gov.uk. Also where children are involved, it may be possible to pursue a claim for a lump sum, property or periodical payments under the Children Act which does not require there to be a maintenance order or even that the parties were ever married.
If you would like any more information on variation of maintenance please contact Paven Basuita or any member of Osbornes family department.