In order to successfully seek a variation of the amount of maintenance 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 Maintenance Order
Although an increasing number of separating couples are able to reach an amicable agreement on the key matters concerning their children — parental responsibility, place of residence, contact arrangements, and maintenance — these matters are usually given legally binding effect regardless, whether by way of a court order or a court-approved settlement agreement. This provides a stable foundation to which the parties may always return in the event of a dispute, and which may 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 bitterly contested, and one can readily envisage a situation in which a party dissatisfied with a final order 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 intervening period.
What Constitutes a Material Change in Circumstances?
It is not sufficient to demonstrate that, having regard to the costs of maintaining a minor child and the financial position and means of the paying parent, a different monthly amount might have been expected. It is necessary to show that the situation (on one side or the other) has undergone a material, 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 continuous rise in the cost of living), from changes in the child’s circumstances (for example, new extracurricular activities giving rise to additional costs, a change in health, and so forth), or 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 amount of maintenance should at the same time be closely correlated with the demonstrated change in 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.
Practical Implications
These considerations must be borne in mind when deciding whether to bring an action to vary a maintenance order, regardless of the role one may play in any such proceedings. A properly drafted claim in this context should contain not only up-to-date calculations, but also arguments substantiating the change in circumstances. A qualified legal representative can always assist in preparing such a claim.