In order to successfully seek a modification of the amount of maintenance awarded in a court judgment, it is necessary to demonstrate a material change of circumstances, whether on the part of the person entitled to maintenance or on the part of the person obliged to pay it.
A Judgment Awarding Maintenance
Although an increasing number of separating couples are able to reach an amicable agreement on the key issues concerning their children (parental responsibility, place of residence, contact arrangements, and maintenance), these matters are typically given legally binding effect — whether by court judgment or by a settlement approved by the court. This provides a stable foundation to which the parties may always return in the event of a dispute, and which may be enforced through judicial or enforcement proceedings.
When May a Maintenance Order Be Varied?
It was the legislature’s intention that maintenance decisions should be relatively stable. Family disputes are frequently among the most acrimonious, and one can readily envisage a situation in which a party dissatisfied with a final judgment initiates fresh proceedings immediately upon the conclusion of the previous ones, in the hope of obtaining a more favourable outcome.
To prevent such situations, the applicable provisions require that a party seeking to vary a maintenance order — whether by way of an increase or a reduction — must demonstrate that a material change of circumstances has occurred in the intervening period.
What Constitutes a Material Change of Circumstances?
This means that it is not sufficient to show that, having regard to the costs of maintaining the minor child and the financial situation and means of the parent obliged to pay, a different monthly sum might have been expected. It is necessary to demonstrate that the circumstances (on one side or the other) have undergone a significant and fundamental change since the date on which the previous order became final. This may arise from the passage of time (older children generally have greater needs, and inflation causes a continuous rise in costs), from changes in the child’s situation (for example, new extracurricular activities generating additional expense, a change in health, and so forth), as well as from changes on the parent’s side (loss of employment, or, conversely, a promotion and a substantial improvement in financial circumstances).
Any variation in the amount of maintenance should, at the same time, be directly correlated with the demonstrated change of circumstances. An argument that the obligation was originally set at too low (or too high) a level for one reason or another should not, in itself, be sufficient to succeed.
Practical Consequences
These considerations should be borne in mind when deciding whether to bring a claim for variation of maintenance, regardless of the role one may play in any subsequent proceedings. A properly prepared claim in this regard should contain not only up-to-date calculations but also arguments establishing the change of circumstances. A qualified legal representative can always assist in the preparation of such a claim.