Spousal maintenance payments (also known as periodical payments) require one spouse to make regular payments (typically monthly) to their former spouse for either a fixed period of time, indefinitely until death or until a certain event in the future (for example, until the recipient remarries or cohabits).
When a spousal maintenance order has been made by the court, it is usually possible for either the paying party (the ‘payer’) or the receiving party (the ‘payee’) to apply to the Court at a later date to increase the amount being paid or reduce the amount being paid or to extinguish the payments entirely.
When the Court has made a spousal maintenance order for a fixed period of time, it can also order that no application can be made at a later date to extend the duration of the order (the payment term). If there is no direction, it is possible for the payee to apply to the Court to extend the time period for the payment of maintenance.
The ability of one spouse to bring an application at a later date (in some cases this can be years down the line) to vary the maintenance/periodical payments can create a significant degree of uncertainty with former spouses finding themselves in the Family Court again in respect of old issues and arguments. In addition to the emotional strain, there is the additional burden of the legal costs.
The Court will need to decide whether or not a spousal maintenance/periodical payments order should be varied, and this can be difficult. This short article sets out some of the considerations that are relevant to a variation application where a payee seeks to extend the payment term. This article is no substitute for taking independent tailored advice from a suitably qualified family solicitor because every individual case is highly fact-specific, and the law develops and changes over time through Case Law.
What the Law tells us
Applications to vary spousal maintenance/periodical payments are made under Section 31 of the Matrimonial Causes Act 1973. When deciding whether or not the original Order should be varied the statute (Section 31 (7)) tells us:
- “In exercising the powers conferred by this section the Court shall have regard to all the circumstances of the case….”
This means that each case will be looked at individually; both former spouses will need to provide each other and the Court with details of their current financial position along with details of other relevant factors (e.g. state of their health, information regarding the children, their ages, their current and future financial obligations, income and earning capacity etc.);
- “first consideration being given to the welfare of any child of the family who has not attained the age of 18…”
When considering any application to vary spousal maintenance payments, the Court is under a duty to look at the circumstances of any child of the family. For example, if the payee is still caring for child(ren) and they are under 18, the spouse may not be able to maximise his/her earnings and this could be relevant when considering the question of whether or not the term should be extended;
- “and (a) in the case of periodical payments…… the Court should consider whether in all the circumstances and after having regard to any such change it would be appropriate to vary the Order so that payments under the Order are required to be made….. only for such further period as will in the opinion of the court be sufficient…… to enable the party in whose favour the Order was made to adjust without undue hardship to the determination of those payments”
The Court is now eager to end once and for all the financial ties between former spouses. When considering therefore if the term of maintenance payments should be extended, the Court will consider if, in fact, the payments should stop – but they should only stop if the payee can adjust without being caused ‘undue hardship’.
What Case Law tells us
Firstly, an application to extend the term of the spousal maintenance payments should be made before the payment term originally ordered has expired.
Provided that requirement is satisfied, the payee seeking to extend the term of payment will need to show some exceptional circumstance/change in circumstance to justify the application to the Court.
To take an example, one could envisage a scenario where a serious medical condition and/or personal injury (and assuming compensation from that incident is insufficient/not forthcoming) significantly impairs the ability of the payee to earn an income and he/she may still be the primary carer for a child; if the spousal maintenance payments from their former spouse were to stop they could be placed in a compromised position and an extension of the term of payment would therefore be justified.
In every case the Court exercises a very broad discretion; though the Law has established certain principles and boundaries about these variation applications at a Final Hearing it will be down to a Judge to interpret what is meant by ‘exceptional circumstance’ and other concepts such as ‘undue hardship’ when striving for a ‘fair’ outcome. There is risk for both parties and those risks must be identified and managed in both parties’ interests.