Can a Maintenance Order be Varied?

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: 

1. The income and earning capacity that each party has or is likely to have in the foreseeable future.
2. Earning capacity; any increase in that capacity that it would be reasonable to expect the parties to take steps to acquire.
3. The financial needs, obligations, and responsibilities each party has or is likely to have in the foreseeable future.
4. The standard of living enjoyed by the family before the marriage or civil partnership breakdown.
5. The age of the parties and the length of the marriage or civil partnership.
6. Any physical or mental disability either of the parties has.
7. Contributions made, or likely in the foreseeable future to be made, to the welfare of the family, including any non-economic contribution.
8. Conduct, if that conduct is such that it would, in the court's opinion, be inequitable to disregard it.
9. 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. 

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.

• 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.