When applying for financial provision as part of your divorce settlement you and your spouse are legally obliged to make full and frank disclosure of your financial circumstances. This enables the court to reach an order, including any order for spousal maintenance, that’s fair and based on the reality of your financial position and your future needs.

But what if financial circumstances change after you have divorced? For example:

  • A spouse in receipt of maintenance (the receiving party) may improve his or her earning capacity reducing the level of maintenance he or she needs.
  • The financial circumstances of the person paying (the paying party) maintenance may worsen so that he or she is unable to discharge the maintenance obligations.
  • The financial needs of the receiving party may increase because of a dip in income or some other change in circumstances.

In all of these cases it’s possible for someone to go back to court and ask the court to change a maintenance order – increasing or reducing the payments due.

How Do Courts Calculate Maintenance In The First Place?

Spousal maintenance is not worked out in the same way as child maintenance which is set according to a formula approved by the government. Instead, courts use their discretion to decide how much maintenance if any should be payable by one spouse to the other. Judges look at the so-called ‘Section 25 factors’ when assessing maintenance levels. These include:

  • The income, earning capacity, property and other financial resources of each party.
  • The financial needs, obligations and responsibilities of each party.
  • The standard of living the family enjoyed before the marriage broke down.
  • Contributions made by each party to the welfare of the family, including contributions to be made in the foreseeable future.

It’s worth pointing out that in recent years the courts have made clear that clean break settlements are preferred. Whereas in the past someone getting divorced might have expected to get an order for lifelong maintenance, it’s now much more likely that any maintenance order will be for a set period only – often for five years.

How Do I Get My Maintenance Increased?

Courts recognise that everyone’s finances are unpredictable. If there’s a significant change in your finances or the position of your former spouse either one of you to apply to court to vary the amount of maintenance payable. Situations where such an application may be advisable include:

  • Retirement
  • Redundancy
  • Receipt of inheritance by one of the former spouse
  • When one former spouse starts to cohabit

If you are able to show there has been a significant change that justifies an application for variation of maintenance, the court will again look at the Section 25 factors. As always, the welfare of any children will be the paramount consideration.

How Do Courts Approach Maintenance Variation Applications?

In a variation application judges will look at the situation before them (as opposed to the financial position at the time of the original financial order) to establish whether or not maintenance should be increased or reduced.

Judges will first ask what the reasonable needs of the person making the application are. If these can be met by that party from his or her own income then there is unlikely to be any order for maintenance. Any existing order will be reduced or terminated.

If the needs of the person seeking to vary maintenance cannot be met, the court will enquire into that party’s earning capacity and try to establish whether it can be increased in any way. If the court believes the person receiving maintenance could increase earnings it may consider altering the maintenance order.

But what if the needs of the receiving party can’t be after he or she has explored all ways to increase income?

It’s at this point that the court may look to see if the paying party has the capacity to increase the maintenance. If an increase could be made then the  court can adjust the maintenance order upwards to meet needs.

Comment

From what we’ve said, it’s evident that applications to vary maintenance are not straightforward. Nor is an increase ever guaranteed. Ideally you should obtain specialist legal advice before starting an application. Often a family solicitor will be able to engage constructively with your former spouse and his or her advisers to agree any variation informally and without the need for you to go to court. Remember, as with any family litigation applications are unpredictable and costly. They are also limited in scope – they should never be seen as an opportunity to reopen the original overall financial/capital settlement.

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