Following a divorce one ex-spouse may be making monthly maintenance payments to the other either by agreement set out in a consent order or ordered by the court. Such payments are usually defined in the order as an amount per month based upon the parties needs and their financial resources which are assessed at the time the order was made. The order will often make provision for an annual increase using the RPI calculation. Such orders tend to last until the end of a specified term, further order, the death of the party making the payments or the remarriage of the party receiving the payments but not necessarily their cohabitation.
But what happens if the party making the payments loses their employment or the party receiving the payments can on longer meet their living expenses? In these circumstances either party can apply to the court to vary the payments up or down. In order to make an application there must be an existing order even if it is only for nominal maintenance e.g. 0.05p and the order must not prevent a further application to court.
The court will look into the parties financial circumstances again and decide what level of payment should be made. The court has a broad discretion and must also assess whether or not a clean break should be imposed upon the parties in which case the payments may be capitalised so that the receiving party receives a lump sum as opposed to continued monthly payments.
Recent case law concerning variation of maintenance claims; Grey v Grey if a receiving party is cohabiting the payments made by their ex-spouse may be reduced and in Vaughan v Vaughan, 25 years after divorcing his first wife the paying party who had himself remarried was ordered to pay a further capital sum to his first wife.
For further information and advice regarding maintenance payments please contact Cristina Court on 01949 830 804 or email ccourt@fraserbrown.com.
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