In this post, we consider how to vary a maintenance order, and what you need to show in order for an application to be favourably considered by the court. We will also highlight recent cases where it seems that joint lives orders may be the exception rather than the rule.
Maintenance Variations – the Law
For the law on maintenance variations, we look to s 31(2)(b) of the Matrimonial Causes Act 1973, which states that the court has the power to vary, discharge, suspend or revive any previous order for periodical payments to be made from one party to another. The court’s discretion is applied and consideration is given to all the circumstances of the case, the principle concern being the welfare of any minor child of the family. The court must also be mindful of trying to bring financial dependence between the parties to an end, and therefore consider if maintenance can be brought to an end provided the recipient can adjust to that without undue hardship (s 31(7)).
When carrying out this exercise, the court looks again at the S.25 factors namely:
a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the Court be reasonable to expect a party to the marriage to take steps to acquire;
b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
c) the standard of living enjoyed by the family before the breakdown of the marriage;
d) the age of each party to the marriage and the duration of the marriage;
e) any physical or mental disability of either of the parties to the marriage;
f) the contributions which each of the parties has made or is likely in the foreseeable future to make to welfare of the family, including any contribution by looking after the home or caring for the family;
g) the conduct of each of the parties, if that conduct is such that it would be in the opinion of the Court be inequitable to disregard it;
h) in the case of proceedings for divorce or nullity of marriage the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
i) As regards the exercise of the powers of the court in relation to a child of the family, the court shall in particular have regard to the following matters:
(j) the financial needs of the child;
(ii) the income, earning capacity (if any), property and other financial resources of the child;
(iii) any physical or mental disability of the child;
(iv) the manner in which s/he was being and in which the parties to the marriage expected him/her to be educated or trained;
(v) the considerations mentioned in relation to the parties to the marriage in paragraphs (a) (b) (c) and (e) above.
The court must review each and every one for any changes since the original order was made. In the context of maintenance variation applications, changes in the parties’ respective financial positions is therefore very relevant especially their needs, available resources and their earning capacity. It is these areas that have been the subject of much case law, which by virtue of the discretionary power available to the judiciary is the best place to look when trying to ascertain the merits of any application to vary maintenance orders.
The best place to start is the case of VB v JP  EWHC 112 (Fam),  1 FLR 742. In that case, the wife’s career had been sacrificed in favour of the husband, so she could bring up the children. After the divorce, the husband’s income increased, and the needs of the children also rose. In his judgment, Sir Mark Potter set out a number of key issues that the court considered:
(1) Is the wife’s budget inflated, even when generously assessed?
(2) Do certain items of claim represent an illegitimate attempt to re-open the wife’s capital claims finally settled at the time of the order?
(3) Does the wife have an unexploited earning capacity and, if so, at what level and when does it fall to be considered.
(4) Does the principle of compensation apply in an application to vary periodical payments order?
(5) If so, is it appropriate to apply it on the facts of this case?
(6) What is the correct quantum of periodical payments?
(7) Should a conventional RPI clause be included in the order as varied and, if so, when should it start?
(8) At what level should the husband maintain life cover during the subsistence of the spousal periodical payments?
(9) Should the co-habitation clause be deleted as a trigger to cessation of payments?
(10) Should the husband be responsible for the payments of extras on the school fees bill and to what extent should that cover flexi/weekly boarding?
(11) Should the court order a reduction to be made in the children’s payments once they start tertiary education?
He came up with four propositions, which can be summarised as follows:
- The element of ‘compensation’ arises at the end of the marriage and s a feature of the concept of fairness, not a head of claim in its own right
- On exit from the marriage there is no right or expectation to continuing economic parity (‘sharing’)
- In big money cases where a clean break can be achieved, equal division of the assets usually meets any ‘compensation’ claim. Otherwise, ongoing maintenance should include reference to compensation within the notion of fairness
- In such cases, compensation is “best dealt with by a generous assessment of the (payee’s) continuing needs unrestricted by purely budgetary considerations” and the inherent considerations contained in MCA 1973 S.25 (a), (b), (d) & (f).
Sir Mark Potter’s approach still holds true. Other notable cases since VB v JP include Hvorostovsky v Hvorostovsky  EWCA Civ 791,  2 FLR 1574 [proportionality and surplus income over the wife’s assessed needs], and Vaughan v Vaughan  EWCA Civ 349,  2 FLR 242 [claims of second wife over husband – in addition to those of first wife].
All Change for Joint Lives?
The case of SS v NS (Spousal Maintenance)  EWHC 4183 (Fam) is also of note, in which Mostyn J. summarised the main points that the court will consider when determining the position on spousal maintenance. The main points of note are as follows:
1. In every case the court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable. A term should be considered unless the payee would be unable to adjust without undue hardship to the ending of payments. A degree of (not undue) hardship in making the transition to independence is acceptable.
2. If the choice between an extendable term and a joint lives order is finely balanced the statutory steer should militate in favour of the former.
3. The marital standard of living is relevant to the quantum of spousal maintenance, but is not decisive. That standard should be carefully weighed against the desired objective of eventual independence.
4. There is no criterion of exceptionality in an application to extend a term order. On such an application an examination should be made of whether the implicit premise of the original order of the ability of the payee to achieve independence had been impossible to achieve and if so, why.
5. On an application to discharge a joint lives order an examination should be made of the original assumption that it was just too difficult to predict eventual independence.
6. If the choice between extendable and non-extendable term is finely balanced the decision should normally be in favour of the economically weaker party.
Time for Work
More recently the case of Wright v Wright  EWCA Civ 201 further highlighted the issue of the term itself, and for how long should the paying party be expected to pay maintenance. Here, a joint lives order was made at the time of divorce, but subsequently varied to provide a step down over 6 years. The Court of Appeal were satisfied that whilst the wife’s earning capacity was not clear at the time of divorce, by the time of the variation application it was shown that she could, with training, support herself without the maintenance.
Perhaps joint lives orders are increasingly going to be a thing of the past in light of the most recent decisions. We shall wait and see, but it certainly seems that earning capacity is a hot topic especially in cases where the divorce was some time ago.
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