Life can be unpredictable, and it is therefore almost impossible for a spousal maintenance order to cover all scenarios. Many circumstances could affect spousal maintenance and make the original order outdated or inappropriate. This is why spousal maintenance orders have the potential to be varied (changed). But what would influence the likelihood of an extension or prevent it, and what procedure needs to be followed? We answer all this and more.
Life can be unpredictable, and it is therefore almost impossible for a spousal maintenance order to cover all scenarios. Many circumstances could affect spousal maintenance and make the original order outdated or inappropriate. This is why spousal maintenance orders have the potential to be varied (changed). But what would influence the likelihood of an extension or prevent it, and what procedure needs to be followed? We answer all this and more.
If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Liza Gatrell. Vicki is a trusted and highly capable family lawyer and divorce solicitor and a Partner at the specialist family law firm, Stowe Family Law.
What circumstances warrant an extension to spousal maintenance?
Significant changes to the recipient’s financial position, such as losing their job or starting a new one on a much lower salary, ill health, disability, or retirement, may warrant an application for extension to spousal maintenance. If you are experiencing financial difficulties managing on the amount of money you have, or if the income of your former spouse/civil partner has increased significantly, then it may be possible to have your payments increased or extended beyond the original term.
Any application to extend the term of spousal maintenance should be made before the original payment term has expired. Provided that requirement is met, the recipient seeking to extend the term will need to show some exceptional circumstance/change in circumstance to justify the variation application.
For example, there could be a scenario where the recipient is suffering from a serious medical condition which significantly impairs their ability to earn an income or care adequately for any children. In this case, if the spousal maintenance payments were to stop, the recipient could be placed in a compromised financial position and extending the term of spousal maintenance would, therefore, be justified.
In every case, the court has wide discretion, and it will be down to the judge to determine what amounts to exceptional circumstances, and any other relevant factors, such as undue hardship, when striving for a fair outcome. There is a risk with any variation application, and it is the court who must identify and manage these and make a judgment that is in both parties interests.
If the original order for spousal maintenance contains a section 28(1A) bar, the order will end on that date regardless of the recipient’s financial situation unless they embark on a complex case to set the whole order aside.
Do I have to make a court application to extend spousal maintenance?
If you cannot agree with your ex about an extension to the current term of maintenance, then it may be worth considering mediation or some other form of arbitration to negotiate an extension. The mediator will not make any decisions for the parties, but instead help facilitate discussions and offer suggestions. Issues resolved via mediation are often completed much quicker, with less disruption and costs involved. But if you cannot attend mediation for whatever reason, or your ex refuses to attend, then you will need to apply for a variation of spousal maintenance.
What should I consider when applying for a variation of spousal maintenance?
A variation application is not something to be embarked upon lightly. Before proceeding with an application, it is important to think about the potential risks which may affect the outcome:
- The court has wide discretion, so predicting the outcome is not usually possible, even for experienced solicitors.
- If a variation application is made too soon after the original order, it may be difficult to justify why it should be changed unless there has been a significant, and usually unexpected, change in circumstances
- Costs are a major factor for variation applications. They can very quickly become disproportionate to the amount of maintenance in issue
- Court proceedings are emotionally draining and intrusive
- There is a real risk that the payments may decrease rather than increase or even be stopped altogether
On an application for variation, the court can also consider whether spousal maintenance should be capitalised. This would mean the payer paying a lump sum to the other in order to achieve a clean break. If this is a real option, the court will look at whether the original order should be varied downwards as well as upwards, and then use a formula to calculate an appropriate lump sum. The payment of a lump sum will also depend on whether the original order was meant to be for a specific period of time or for the parties joint lives.
What is the process of applying for a variation of spousal maintenance?
As stated above, you cannot ask for a variation of spousal maintenance without showing there has been a change of circumstances. So, for an extension of the original term, you would need to show that your financial circumstances would be significantly adversely affected if the payments stopped at the end of the term.
The procedure to vary spousal maintenance is similar to that of financial proceedings in divorce. A Form A application will need to be completed and filed at court. Each party will need to provide full and frank financial disclosure by completing and filing an abbreviated Form E2, which is 8 pages long compared to the 26 pages of a standard Form E. This makes the process far more streamlined and aims to provide a summary snapshot of financial circumstances as opposed to a full, comprehensive picture.
Criticism has been made that the Form E2 at times appears inadequate for the job, and must then be supplemented with information that is required in a standard Form E. It is therefore possible to request that the standard procedure should apply, and consideration must be given at the outset of a case as to the most appropriate approach. In more complex cases, such as those with high-value assets, the standard financial procedure is more likely to be necessary, than for those with more modest values.
An application to vary spousal maintenance has a very similar feel to that of reaching a financial settlement. The same principles apply, aside from the previous point in time to which reference is made, and there is likely to be very familiar battlegrounds of needs and fairness competing with finality and a clean break, all competing with undue hardship.
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