Orders for maintenance of a former spouse (or periodical payments) made in divorce proceedings can always be varied, suspended or discharged on the grounds of changed circumstances (Matrimonial Causes Act 1973 section 31).
The basis of an application to vary a maintenance order is always a change of circumstances since the original order was made. The changed circumstances can be those of yourself as applicant or your former spouse as respondent to the application. The amount of maintenance can be varied upward or downwards, 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.
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 party receiving maintenance must not have remarried;
- The applicant must be able to show a change in the matters to which the court was required to have regard when making the order.
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 has a wide discretion to decide when or if to allow a variation of maintenance. There is a duty to consider whether or not there should now be a clean break. This could be achieved by capitalising future maintenance and by the payer paying a lump sum in lieu of future maintenance payments.
Case law has shown a general trend towards allowing downward variation of maintenance and refusing applications to increase the length of maintenance orders where they were made for a specific term to allow for a clean break. 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.
