In order to successfully seek a variation of a maintenance amount awarded by a court order, it is necessary to demonstrate a material change in circumstances, whether on the part of the person entitled to maintenance or the person obliged to pay it.
A Court Order Awarding Maintenance
Although an increasing number of couples going through a separation 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 way of a court order or a settlement approved by the court. This provides a foundation to which the parties can always return in the event of a dispute, and which can be enforced through the courts or via enforcement proceedings.
When May a Court-Ordered Maintenance Amount Be Varied?
It was the legislature’s intention that maintenance orders should be relatively stable. Family disputes are, more often than not, fiercely contested, and one can readily envisage a situation in which a party dissatisfied with a final judgment promptly initiates fresh proceedings upon the conclusion of one set of proceedings, in the hope of obtaining a more favourable outcome.
To prevent such situations, the applicable provisions require that a party seeking a variation of a maintenance order — whether seeking an increase or a reduction — must demonstrate that a material change in circumstances has occurred in the interim.
What Constitutes a Material Change in Circumstances?
This means that it is not sufficient to show that, taking into account the cost of maintaining a minor child and the financial position and means of the parent obliged to pay, a different monthly maintenance figure might have been expected. It is necessary to demonstrate that the situation (on one side or the other) has undergone a material 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 in addition causes a steady rise in costs), from changes in the child’s circumstances (for example, new extracurricular activities generating additional expenditure, a change in health, and so forth), as well as from changes in the parent’s circumstances (loss of employment, or, conversely, a promotion and a significant improvement in financial position).
Any variation in the maintenance amount should, at the same time, be closely correlated with the demonstrated change in circumstances. An assertion 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 to bring a claim for variation of a maintenance order, regardless of the role one may play in any such proceedings. A properly prepared claim in this regard should contain not only up-to-date financial calculations, but also arguments substantiating the change in circumstances. A qualified legal representative can always assist with its preparation.