Variation applications – what do you need to know?
Covid-19 has had an impact on most people’s financial position and for many, the impact has not been positive. When times get tough, people start to audit their finances. Can we afford to keep the subscription to the magazine that usually goes unread, the direct debit to a streaming service that we don’t even remember the password for, or – more significantly- a spousal maintenance standing order? Conversely, we also look at our monthly income and wonder if there is a way we can eke out a little more. Can we up our hours at work, sell some clothes online, or other money-saving measures?
In these times of continuing economic upheaval, it is to be expected that variation applications are on the rise. Solicitor Heather Lucy with the Group’s specialist Family and Child Law practice McAlister Family Law explains.
What can the court do?
The court has the power to increase, decrease, suspend, terminate, extend (in certain circumstances), or capitalise the spousal maintenance payments. Capitalising payments simply means that a lump sum is calculated based on the term and quantum of the order, which is then paid and the ongoing obligation ends. This is good for the payee as they have the certainty of having the cash in their bank account and also good for the payer as they do not need to look over their shoulder with regard to a potential application for an upward variation of maintenance if they get a promotion, for example. The issue with capitalisation, however, is usually affordability.
The key thing to remember with spousal maintenance is that it is based on the needs, as agreed or determined by the court, of the parties. It is by showing that those needs, or your ability to meet your own needs, have changed that may give rise to a variation of spousal maintenance.
How do I do it?
The first port of call should be to speak to your ex-partner. Explain the situation to them and see if you can come to an agreement. You can invite them to come to mediation with you to see if the input of a neutral third party assists. If you do not seem to be making progress, you can instruct a solicitor to put the request to them more formally and see if you can come to a resolution outside of the court arena.
If it does not work, you will need to consider making an application to the court. It is crucial to understand the potential cost implications before applying. The usual family law rules, where parties meet their own costs save for exceptional circumstances, are suspended in variation applications. The successful party (be that the party applying for or defending the application) may claim their costs from the unsuccessful party. For this reason, it is sensible to reach an agreement without issuing proceedings wherever possible.
What happens in the court proceedings?
If you have a spousal maintenance order in place, there is a good chance that you have been through court proceedings or negotiations via solicitors. This means that the process of financial disclosure will be familiar to you. The courts need to know about each party’s assets, liabilities, income, and outgoings before they can make a decision. The first step, therefore, is financial disclosure which is usually done by way of Form E1. The court will then be in a position to decide whether it would be fair to vary the original order.
What do the courts consider?
The court’s primary consideration will be the welfare of any children. It has a broad discretion in terms of the orders it can make, as set out above, but they will need to focus on any changes in circumstance since the original order was made. This is important to consider as it will be very difficult to persuade the court to vary the order if nothing material has changed. This means you should be very specific about why you are asking the court to change the current order, for example, are you being paid £100 less a week and need your ex-partner to top up the order by that amount to meet your needs? Are you being paid £100 less a week and therefore need to reduce your spousal maintenance obligation?
The order may not be as straightforward as these two examples, but they are the kind of questions you need to ask yourself.
What’s the bottom line?
If your financial circumstances change, you may be able to vary a spousal maintenance order. Good communication is key and you should start by having a discussion with your ex-partner. This is crucial due to the potential cost implications of bringing an application to the court. Both parties will need to be aware of this and it can encourage negotiation.
It is difficult to provide broad-brush advice on variation as cases will turn on their specific facts. You may wish to take some advice from a solicitor before approaching your ex-partner directly or you might have reached a point where it is clear matters will not be resolved amicably; either way, McAlister Family Law’s team of expert lawyers can advise you.