In order to successfully seek a variation of a maintenance award made by a court, it is necessary to demonstrate a material change in circumstances, whether on the part of the person entitled to maintenance or the person liable to pay it.
A Maintenance Order
Although an increasing number of separating couples are able to reach an amicable agreement on the key issues concerning their children (parental responsibility, residence, contact, and maintenance), these matters are generally still regulated in a legally binding form — whether by court order or by a settlement approved by the court. This provides a framework to which the parties can always return in the event of a dispute, and which can be enforced through the courts or by way of enforcement proceedings.
When May a Maintenance Order Be Varied?
It was the legislature’s intention that maintenance orders should be relatively stable. Family disputes are typically among the most acrimonious, and one can readily envisage a situation in which a party dissatisfied with a final judgment commences 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 in circumstances has occurred in the interim.
What Constitutes a Material Change in Circumstances?
It is not sufficient to show that, having regard to the costs of maintaining the minor child and the financial position and means of the liable parent, a different monthly sum 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. Such a change may arise from the passage of time (older children generally have greater needs, and inflation causes a steady rise in costs), from changes in the child’s circumstances (for example, new extra-curricular activities generating additional expense, a change in health, and so forth), or from changes on the parent’s side (loss of employment, or conversely, a promotion and a significant improvement in financial position).
Any variation of the maintenance amount must at the same time be closely correlated with the demonstrated change in circumstances. An argument that the obligation was previously set at too low (or too high) a level for one reason or another should not, in itself, be sufficient.
Practical Consequences
These considerations must be borne in mind when deciding whether to bring a claim for variation of a maintenance order, regardless of the role one is to 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 in preparing such a claim.