3.5 Varying Court Orders
From time to time it may be appropriate to look at an increase in the level of maintenance which the “absent” parent is paying for the children. (The absent parent may, of course, want to look at reducing the payment).
On the whole, if there is an existing Court Order for maintenance then varying the amount of maintenance remains a matter for the Court, if the parties cannot agree on a variation. Even where they can agree, it may be wise to have the Order varied – by agreement – to reflect the new levels of agreed maintenance. This then facilitates enforcement if the paying party defaults, and ensures that the prevailing Order reflects the actual agreed position.
In determining whether there is justification for a variation in the maintenance Order, consideration needs to be given to the income and expenditure of both parents. This means obtaining and giving full financial disclosure in these areas. It is then possible to look at the respective needs and resources of the parties, the ages of the children and all the relevant facts so as to establish an appropriate (new) level of maintenance.
Such documentary disclosure of income and expenditure may put both parents into the position where they can in fact reach agreement in any event about a new and more appropriate level of child maintenance in all the circumstances. If the parents can still not agree then the matter can ultimately be decided by the Court at a hearing.
The CSA can only become involved with child maintenance in existing Court Order cases in limited circumstances. They will be able to make an assessment if the parent with care of the children is in receipt of Income Support or Job Seeker’s Allowance. That parent can also seek an assessment by the CSA in certain circumstances where the Order is made after 05.04.1993. When such an order has been made more than one year before, then the CSA can take over from the courts in determining maintenance payments.
If a spouse has an Order for maintenance in their favour against the other spouse then it is possible (before or after a divorce) to apply to the Court to request that it should consider a new level of maintenance. This is often (although not always) on the basis of a change in the circumstances of one of the parties. There can, therefore, be a request by the recipient for an increase in maintenance, or equally a request by the payer for a downward variation.
In order to consider whether a change in the maintenance Order is appropriate it is again necessary to look at both parties’ income and expenditure position, following documentary disclosure. This information will reveal needs and resources – and those factors along with age, earning capacity, and the other relevant considerations would form the basis for considering the appropriate level of maintenance in the specific circumstances of the case. There is no fixed formula for calculating the exact level. Every case is different and will be judged on its individual facts.
Production of this documentary evidence may enable the parties to negotiate a new and agreed maintenance deal. If agreement is reached then it is generally best if it is endorsed by the Court. A joint application to the Court should be made requesting it to make an Order “by consent” for the new level of maintenance. If this step is not taken then the new level may be difficult to enforce if the payer defaults.
If an agreement cannot be reached (even after disclosure and negotiation) on a new level of maintenance then the Court can be asked to decide the matter at a hearing.
It is possible to ask the Court to consider making a lump sum Order on an application to vary a spouse maintenance Order. Such a lump sum would be seen as “capitalising” the previously paid maintenance and would be in lieu of future maintenance.
It is also possible for a paying spouse to apply to the Court to end his obligations to pay any future maintenance and the Court can make an Order to end all future claims for maintenance payments.
On the whole, final Orders made regarding the financial issues on divorce (other than for maintenance) cannot be varied. They are the once and for all and final version of the financial division.
If an Order has just been made and you believe that the Court has “got it wrong” there is a right to appeal. There are strict (and fairly short) time limits within which to lodge an appeal at Court. An appeal is often on the basis that the Court actually misdirected itself and made a mistake on the application of the law or facts. However, advice should usually be obtained from a Barrister (via a Solicitor) as to whether grounds for appeal exist.
There are also certain circumstances where, exceptionally, the Court can be asked to look at a matter afresh – for example where the Court has been misled by one party as to the true financial position at the time when the Order was made.