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Variation or discharge of maintenance orders

Variation or discharge of maintenance orders

Orders for periodical payments (or alimony, I call it alimoany!) can always be varied, suspended or discharged on the grounds of changed circumstances (Matrimonial Causes Act 1973 section 31)

Anyone considering the possibility of an application to vary ( either way, up or down ) should bear in mind the following considerations :

(a) Bear in mind the possibility of negotiation or mediation as an alternative to Court proceedings. ( I myself was able to do this on my retirement, and if you can do it this way you will save a great deal in costs ).

(b) In simple straightforward cases it is possible to have the case dealt with by the Family Proceedings Court ; much cheaper than the County Court and you should ask your solicitors about this possibility.

(c) You must always consider the costs aspect. Is it, for example, really worth to spend £10,000 to get £500 a year knocked off your maintenance ?

(d) On an application for variation or discharge, a Court has to have regard to the same factors as on the original application. You do need to bear in mind that a Court will look at the case afresh, and it is possible to apply for a reduction and get an increase, or vice versa.

(e) One of the difficulties about variations, especially after a long period of time, is that it may be much harder for the spouses to know very much about their ex's finances, and it is therefore difficult to judge the chances of success. For example, a payer may be experiencing real difficulties meeting the order, but does not challenge it and manfully carries on paying. The ex may apply for an increase, and the judge may decide he can't even afford to pay the current order and reduces the payments.

(f) The Court also has the power to order a payer of maintenance to pay a lump sum in return for the cancellation of the maintenance payments. This can have implications for the payer who may have acquired capital assets since the separation, which the wife cannot claim directly. The Court could, for example, order the payer to pay to the ex wife part of an inheritance in lieu of maintenance. This can be an attractive proposition for an ex - wife who intends to re-marry or cohabit, because the payments would be lost or reduced anyway. Most recipients of maintenance do not know about this; but the payer must consider the possibility that, if they apply for a variation, the ex may consult solicitors who will tell her.

In short, variations or even discharges are possible and within the powers of the Court ; they are likely to succeed if the payer's income is dramatically reduced, but otherwise both parties need to weigh up the risks very carefully.

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