Varying spousal maintenance

Can I apply for my spousal maintenance payments to be varied if my circumstances change?

Yes, a court may vary an order for spousal maintenance where the financial circumstances of either party has changed, including:

• Change in income
• Change to needs or living expenses
• A new child
• A new relationship

The courts’ approach to varying maintenance

The court has wide discretion and can vary the maintenance order upwards or downwards, terminate it, or capitalise it into one lump sum payment, as well as discharge any arrears.

For example, in the case of W v W [2015] EWCA Civ 201 the original order provided for the wife to be paid spousal maintenance on a “joint lives” basis. The husband sought to vary the spousal maintenance downwards as his income had decreased and he was anticipating his retirement in six years. He also emphasised that the court had made it clear that the wife had been expected to utilise her own earning capacity, which she had failed to do. The court agreed to vary the maintenance payments downwards between 2013 and 2019, after whichthe payments would cease. The wife appealed, but the Court of Appeal upheld the decision.

In contrast, the Supreme Court ruled against varying an order for spousal maintenance in Mills v Mills [2018] UKSC 38. The wife had been awarded most of the parties’ liquid capital, as well as spousal maintenance on a “joint lives” basis. She subsequently made a series of “unwise” property purchases which drained her capital and resulted in her living in rented accommodation. She sought an increase in her spousal maintenance to cover her rent, and the husband sought for the payments to be decreased or discharged. At first instance, the court declined to vary the order, but at the Court of Appeal, the wife’s appeal was allowed, and her maintenance was increased. Upon the husband’s subsequent appeal, the Supreme Court held that the judge at first instance was entitled to decline to vary the order. In short, the original order was maintained. 

The courts are increasingly encouraging parties to work towards financial independence following a divorce and will consider whether a ‘clean break’ settlement is appropriate. Where a clean break was not originally provided for, the court may choose to ‘capitalise’ the total value of the future maintenance payments and order the payer to pay this in one lump sum instead. Once the lump sum is paid, the maintenance order would be discharged.

Bars to variation 

The court may order spousal maintenance for a fixed set term, for example five years, to support the payee until they can be financially independent. The court has the power to include a bar to extension under section 28(1A) of the Matrimonial Causes Act 1973, which prevents the payee from applying to extend the set term.

If you believe the amount of spousal maintenance you are paying, or is being paid to you, is incorrect, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.  

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