A change in circumstance could mean that you’ve lost your job and can’t pay a previous financial order or you’re the payee and are struggling to make ends meet. This isn’t uncommon and you can seek to vary the original order. There are different types of matrimonial orders that a Court can vary however if there is a clean break, the order cannot be varied.
There are a number of factors a Court will consider in deciding whether to vary the original order. Generally the Court will consider all the circumstances of the case, particularly the welfare of any child, although the overriding object is always fairness.
The Court will look to see if there has been any change in financial circumstances since the original order, for example an increase or decrease in income. The Court can also consider the case afresh however it is important that the balance achieved by the original order is carried forward and therefore the Court will consider the original agreement in full.
The Court will take into account everyone’s needs. Just because the paying party’s financial circumstances have improved does not necessarily mean that the Court will increase the maintenance unless the payee’s needs justify it. If there is a decrease in wealth of one party which is considered to be their own fault, the Court may not accept this as a ground to vary the original order. The Court should consider a clean break but only if this would not cause great hardship to the dependant. A clean break is less likely if there are young children.
If one party begins cohabitating with a new partner, this will be considered a change in circumstances. This factor is only significant if it causes a reduction in the party’s needs as there is an increase in the overall household income. The Court may consider the financial position of the new partner and question how much they would expect them to contribute to the running of the household.
The person seeking a variation would need to attend a mediation intake appointment before making an application to the Court. Both parties would then be expected to comply with the same procedure as any other application for a financial order. The Court would fix a hearing date and the parties would need to file at Court and exchange with each another a form disclosing their financial position. The Court may ask that additional evidence is filed by one or both of the parties and therefore a further hearing would be required in order for the Court to consider this evidence before making their decision.
Elizabeth is in the family law team at Stephens Scown in Exeter. To discuss marriage in later life or any other divorce issue please call 01392 210700 or email enquiries@stephens-scown.co.uk