A spousal maintenance order, which is 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 grant;
- a joint-lives order –where payments are made on an indefinite basis or
- if it is more appropriate, to impose maintenance for a defined period of time.
Unless the recipient cannot adjust to financial independence without undue hardship, the latter option tends to be favoured by the court.
Photo by engin akyurt on Unsplash
A change in your circumstances
If there is a significant change in your current circumstances, you may be able to apply to vary a spousal maintenance order.
Varying an order for spousal maintenance payments
The court has the power under section 31(1) MCA 1973 to vary an order for spousal maintenance payments, by either increasing or decreasing payments, if there is a change in circumstance
The court has broad discretion when determining variation applications. In exercising its powers, the court will have regard to all the circumstances that relate to the case. The first consideration will be 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. This also includes the factors set out in section 25 MCA 1973. The needs of each party will remain a dominant factor, but the overriding objective is always fairness.
What is capitalised maintenance?
The first thing the court will consider is whether any variation is necessary. If it is, they will consider the date from which the variation should take place and whether to limit the term. 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.
Find out more on how spousal maintenance can be calculated here.
How do you vary a spousal maintenance order?
A Form A1 will have to be completed and filed with the court to make an application to vary a spousal maintenance order. The court will then fix a hearing date not less than 6 weeks, but not more than 10 weeks after the date the application was filed. Often, a shorter procedure is used in applications for variation. This involves a simplified version of the Form E to record the parties' updated financial positions.
There are also situations where the standard procedure would be more advisable; however, this will depend on the circumstances of the case.
Some important points to consider for spousal maintenance
- Spousal maintenance orders can be varied up or down.
- The obligation of a party to make payments under the existing order continues, so payments shouldn't be stopped unilaterally. The court has the power to remit any arrears due under the order.
- Parties will usually bear their own costs, so you need to consider whether it is proportionate to make an application.
To find out more the Supreme Court considered an application to vary a periodical payment order in the case of Mills vs Mills [2018], you can found out more from the case study explained here on the Myerson website.
Leave a Reply