Varying spousal maintenance

Spousal maintenance is a regular form of payment that is paid by one spouse to the other, following the couple’s divorce. The purpose of spousal maintenance is to support the other party, and ideally, help them transition to financial independence.

Spousal maintenance may be agreed between the parties themselves, or ordered by the court. You may feel that the amount of spousal maintenance you are paying or receiving is unfair. If so, it is possible to vary the amount payable. If you and your former spouse agreed how much spousal maintenance should be paid between yourselves, then your first step would be to try and negotiate a varied amount with them.

If the court made an order for spousal maintenance, both you and your former spouse can apply to the court for a variation.

Can Spousal Maintenance Be Changed?

Yes. Under UK law, either party can apply to vary spousal maintenance if there’s been a significant change in financial circumstances. This could include:

• A change in income (e.g. job loss or promotion)
• Increased or decreased living expenses
• Remarriage or cohabitation
• Retirement or health issues
• Birth of a new child

Can Maintenance Be Increased or Decreased?

Yes. The court has wide discretion and can vary the maintenance order upwards or downwards, as well as:

• Set an end date (if none exists)
• Convert payments into a lump sum
• Terminate the order entirely
• 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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Frequently asked questions

Can I apply to end spousal maintenance early?

Yes. If you believe the recipient no longer needs support or your financial situation has changed, you can apply to the court to end the order. The court will assess whether a clean break is now appropriate.

What’s the difference between spousal maintenance and child maintenance?

Spousal maintenance supports an ex-spouse, while child maintenance supports children. They are calculated separately and governed by different rules. A change in one doesn’t automatically affect the other.

Can I agree changes to maintenance without going to court?

Yes, if both parties agree, you can vary the maintenance terms by consent. However, it’s crucial to formalise the agreement through a court order (a consent order) to make it legally binding and enforceable.

What if my ex refuses to pay spousal maintenance?

If your ex stops paying without a court-approved variation, you can apply to enforce the order. The court has several enforcement options, including wage garnishment or even charging orders against property.

How long does spousal maintenance last?

It depends on the court order. Some are time-limited (e.g. 5 years), others are joint lives orders (until one party dies or remarries). You can apply to vary the duration if circumstances change.

Can spousal maintenance be capitalised into a lump sum?

Yes. In some cases, ongoing payments can be converted into a one-off lump sum, ending future obligations. This is called “capitalisation” and must be approved by the court.