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What is spousal maintenance?
A spousal maintenance order, also known as a periodical payments order, is an obligation for one party to pay the other a sum of money on a weekly or monthly basis.
If the court grants a spousal maintenance order, it will need to determine whether to make a joint-lives order or if it is more appropriate to impose maintenance for a defined period.
Unless the recipient cannot adjust to financial independence without undue hardship, the latter option tends to be more favourable in the eyes of the court.
Can a maintenance order be varied?
If there is a significant change in your circumstances, you may be able to apply to vary a spousal maintenance order.
What is an application to vary spousal maintenance?
Under section 31(1) MCA 1973, the court has the power to vary an order for spousal maintenance payments.
The court has broad discretion when determining variation applications. In exercising its powers, the court will have regard to all the circumstances of the case, with the first consideration being given to the welfare of any child.
The court will also consider any of the matters it was required to have regard to when making the original financial order, including those factors set out in section 25 MCA 1973, which are summarised as follows:
- The income and earning capacity that each party has or is likely to have in the foreseeable future.
- Earning capacity; any increase in that capacity that it would be reasonable to expect the parties to take steps to acquire.
- The financial needs, obligations, and responsibilities each party has or is likely to have in the foreseeable future.
- The standard of living enjoyed by the family before the marriage or civil partnership breakdown.
- The age of the parties and the length of the marriage or civil partnership.
- Any physical or mental disability either of the parties has.
- Contributions made, or likely in the foreseeable future to be made, to the welfare of the family, including any non-economic contribution.
- Conduct, if that conduct is such that it would, in the court's opinion, be inequitable to disregard it.
- The value of any benefit that either party will lose the chance of acquiring.
The party's needs will remain a dominant factor, but the overriding objective is always fairness.
The court will first consider whether any variation is necessary.
If it is, the court will consider the date the variation should take place from and whether to limit the term.
Finally, the court will review the appropriateness in all the circumstances of substituting a capital payment to replace the income stream being terminated, and this is known as capitalising maintenance.
When to apply for a variation
This will depend on the circumstance of the case.
Common situations include:
- The paying party retiring.
- A change in the payers' employment leading to a reduction in their income or the payer losing their job
- The person receiving maintenance starts to work or increases their income from employment.
- The person paying maintenance receives a significant increase in their income from employment.
- The person receiving spousal maintenance cohabiting for an established period of time.
Effect of Cohabitation
If a party receiving periodical payments cohabits, this is not necessarily a reason for reducing or terminating maintenance.
Cohabitation is not necessarily equated with re-marriage.
Cohabitation, however, remains relevant as it causes a reduction in the payee's needs.
How do I vary a court order for maintenance?
The application in Form A or Form A1 is completed and filed with the court to make an application to vary a spousal maintenance order.
The court will fix a hearing date not less than six weeks but not more than ten weeks after the date the application was filed.
Typically, a shortened procedure is used in variation applications which involves a simplified version of Form E to record the parties' updated financial positions.
A few important points to consider
- Spousal maintenance orders can be varied up or down.
- A party's obligation to make payments under the existing order continues, so payments should not be stopped unilaterally. The court has the power to remit any arrears due under the order.
- Parties usually bear their own costs, so you need to consider whether it is proportionate to make an application.