When a Spousal Maintenance Order is made the courts retain the power to vary that order in the event that either party applies to vary at a later date.
Usually, an application to vary is made where there has been a meaningful change in either party’s circumstances, e.g. one party loses their job or alternatively if one party’s income improved.
When you choose to work with our team, we will carefully listen to your situation to fully understand your financial circumstances and what you are seeking to achieve. We can then provide advice tailored specifically to you, as well as practical guidance and close personal support.
Our spousal maintenance solicitors have considerable expertise concerning variation and capitalisation of spousal maintenance, including:
- Court applications to vary spousal maintenance
- Responding to an application to vary spousal maintenance
- Court applications to capitalise spousal maintenance
To speak to one of our spousal maintenance solicitors for assistance, please contact us for an initial consultation.
How we can help with variation and capitalisation of spousal maintenance
Advice on your rights
When making the decision as to whether to apply to court for variation or capitalisation of spousal maintenance, it’s important to be aware of what exactly it means, including the risks.
For example, before making an application to vary a maintenance order, it is prudent to consider the likely legal fees that might be incurred set against the value of maintenance at stake.
Our spousal maintenance solicitors have a broad scope of knowledge and can provide specialist and practical advice on variation and capitalisation of spousal maintenance, including the benefits and risks that it imposes on those who will be affected by the change.
Court applications to vary spousal maintenance
If you need to change the terms of your spousal maintenance, a family law solicitor can assist with making an application to court.
This might be necessary if you are no longer able to afford to pay the spousal maintenance you have been paying up until this point, you are seeking more spousal maintenance from your ex-spouse or your financial circumstances have changed.
Our spousal maintenance solicitors can help you gather evidence to support your application, including evidence of your financial position at the time the order was set and what your financial position is currently.
Responding to an application to vary spousal maintenance
If your ex-spouse has made an application to vary spousal maintenance, a spousal maintenance solicitor can provide clear, tailored advice in addition to representing you during proceedings to prevent the variation from occurring.
At Tanners, our solicitors have worked with various clients in similar scenarios and have a successful track record of achieving the desired outcome in either reducing or increasing the amount of spousal maintenance payable.
Court applications to capitalise spousal maintenance
The court also has the power to capitalise spousal maintenance in appropriate circumstances. This means that a lump sum is transferred from the paying party to the other, which then brings an end to the spousal maintenance order. This typically occurs when the person paying maintenance comes into a significant sum and can afford to capitalise.
Our solicitors can assist with your application to court to capitalise spousal maintenance, whether you are the individual paying or receiving spousal maintenance. The Courts are obliged to consider a Clean Break if at all possible.
What is spousal maintenance?
When a couple ends their marriage, if one party earned significantly less than the other and relied on their ex-spouse financially, the court may order the higher earning party to pay spousal maintenance during the divorce settlement. This is often paid on a monthly basis to the payee for a set number of years.
What variations can be made to spousal maintenance?
Spousal maintenance can be varied either by increasing payments or decreasing payments. It is also possible for the court to suspend, terminate or capitalise the spousal maintenance should they deem it necessary for the situation.
Do you have to go to court to vary the spousal maintenance payable?
Applying to court for a judge to make a decision on whether to vary spousal maintenance payable isn’t always necessary. It can be possible for the involved parties to privately arrange to increase, reduce, suspend, terminate or capitalise the amount.
However, to make this variation legally binding and to prevent previously ordered payments from being enforced in the future, a court application is often advisable. This can prevent unnecessary future disputes.
When might a variation of spousal maintenance be necessary?
There are many reasons why applying for variation might be considered appropriate, including:
- A considerable change in either party’s income (reduction or increase)
- When either party enters into a new relationship
- When either party ends a relationship
- A significant change to either party’s needs
- The birth of a child
What does the court take into consideration when varying spousal maintenance?
The courts will take several factors into consideration when reviewing an application to vary or capitalise spousal maintenance. .
Section 25 of the Matrimonial Causes Act 1973 and Schedule 5, Part 5 to the Civil Partnership Act 2004 set out the statutory principles. The Courts first consideration is the welfare of any children involved. In addition, the Court considers the following:
- The income and earning capacity that each party has, or are likely to have in the foreseeable future, and in the case of earning capacity, any increase in that capacity that it would be reasonable to expect either party to take steps to acquire
- The financial needs, obligations and responsibilities that each party has, or are likely to have in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the marriage or civil partnership
- The ages of the parties and the length of the marriage or civil partnership
- Any physical or mental disability
- Contributions made, or likely in the foreseeable future to be made, to the welfare of the family, including any non-economic contribution
- Conduct, if that conduct is such that it would, in the court’s opinion, be inequitable to disregard it (although it is rare for conduct to be taken into account and the reason for the marriage or civil partnership breakdown is very unlikely to be a conduct issue), and
- The value of any benefit that you will lose the chance of acquiring
Other principles have become part of the law through the decisions of senior courts. These dictate that the court must also consider:
- More rarely, compensation for loss of career opportunity through marriage or civil partnership, for example, and
- The sharing of any wealth above that which fulfils each party’s reasonable needs
What are the benefits of capitalisation?
There can be many benefits to capitalising spousal maintenance, including but not limited to:
- Allowing both parties to have a ‘clean break’ i.e. cutting financial ties between them
- Monthly outgoings will be reduced
- Prevents new relationships from being impacted
- No risk of future variation of spousal maintenance occurring
What are the risks of capitalisation?
Capitalisation of spousal maintenance can involve parting with a significant sum of money in one go. This could be damaging because what happens in the future is unknown and, for whatever reason, your or your ex-spouse’s circumstances may change.
You may not be able to work in the future or your ex-spouse’s income may significantly increase. In such circumstances, spousal maintenance would potentially be reduced, so by capitalising now, you risk paying more than may be the case if either person’s circumstances change in future.
Speak with our specialist family solicitors in Cirencester and Cheltenham today
To get support with variation and capitalisation of spousal maintenance, please contact a member of the family law team for an initial consultation.