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What is spousal maintenance?
A Spousal maintenance order, 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 or if it is more appropriate to impose maintenance for a defined period of time. Unless the recipient is unable to adjust to financial independence without undue hardship, the latter option tends to be more favourable in the eyes of the court.
Change in circumstances
If there is a significant change in your 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.
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, 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. 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, they will consider the date from which the variation should take place 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.
Procedure to vary a spousal maintenance order
A Form A1 will need 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 six weeks but not more than ten weeks after the date the application was filed. Typically, a shorter procedure is used in variation applications which involves a simplified version of the Form E to record the parties' updated financial positions.
There are situations where the standard procedure would be more advisable depending on the circumstances of the case.
A few important points to consider
- 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, and therefore you need to consider whether it is proportionate to make an application.
