Variation of spousal maintenance

Insight

20.05.2025

The last few years have seen difficult and uncertain economic times and the costs of living have been increasing at a higher rate than earnings. It is not surprising therefore that we have seen an increase in the number of clients seeking to vary their maintenance orders. Applications for variation are often unpredictable and costly, so the benefits and risks should be considered from the outset.

This article provides an overview of the law and matters to consider in light of recent cases.

Legislative framework

The court has wide powers under s 31 of the Matrimonial Causes Act 1973 (“MCA”) to vary orders for spousal maintenance. It can increase/decrease the quantum and/or term, temporarily suspend or revive a periodical payments order, remit any arrears that have arisen, order the recipient to repay monies already received or discharge the order entirely (see MCA, s 31). The court may backdate the variation to the date of the application, or may direct that the variation should take effect at some later date. In addition, the court has a statutory duty to consider the appropriateness of implementing a “clean break” by ordering a lump sum, property adjustment or pension sharing order in place of ongoing periodical payments (see s 31(7A) and (7B) MCA).

Procedure for a variation application

Applications to vary periodical payments are to be made under the fast-track procedure set out in Chapter 5 of Part 9 of the Family Procedure Rules, with the application being issued using Form A1. Financial disclosure is then completed in Form E2, which is specifically for use in variation applications and which largely focuses on the income and expenditure of the parties.However, in cases where the application is to capitalise the existing periodical payments order and substitute it with lump sum, property adjustment or pension sharing orders, the standard procedure set out in Chapter 4 of Part 9 applies. Proceedings will then be initiated by filing a Form A with the court and the parties will need to exchange their financial disclosure in the more comprehensive Form E.

The test

The statute provides that in exercising its power to vary, the court must have regard to all the circumstances of the case, first consideration being given to the welfare of any children of the family who have not yet attained the age of eighteen. The statute specifically states that “circumstances” includes any change in any of the matters to which the court was required to have regard when making the original order.

Changing circumstances

The outcome of cases will inevitably be subject to their specific fact patterns, informed by case-law and advising clients as to the relative merits and likely outcome of an application for variation can be challenging. Case law has though made clear that there must be a significant change (Birch v Birch [2017] UKSC 53, [2017] 2 FLR 1031) in the circumstances of either party which justifies a variation of the level or term of the original spousal maintenance order.

(i) The downturn in the economy has led to variation applications resulting from redundancies and business difficulties. For example, in the decision of Y v Z (by her litigation friend X) [2023] EWFC 205, spousal maintenance was varied to a nominal sum where the husband had lost his employment and remained unemployed.
(ii) A party's financial mismanagement of their affairs will likely be a relevant factor on a variation application. In the case of Mills v Mills [2018] UKSC 38, [2018] 2 FLR 1388, the Supreme Court allowed an appeal by a husband against an order requiring him to increase the level of periodical payments to his former wife in circumstances where she had extinguished her capital award through bad investments, finding that even if the husband could afford to make the payments it was not fair for him to have to underwrite her bad decisions.
(iii) Spousal maintenance ends automatically on the recipient's remarriage, but not on cohabitation. Cohabitation may, however, trigger a variation application where the recipient's outgoings or needs reduce as a result. In Atkinson v Atkinson [1988] 2 FLR 353 it was found that, whilst “settled cohabitation” did not equate to marriage, it did amount to a change in circumstance. It was also held that a decision not to marry for the purposes of maintaining maintenance would be considered conduct as found within s 25(2)(g) of the MCA. However, the impact of cohabitation remains case specific. In Grey v Grey [2009] EWCA Civ 1424, [2010] 1 FLR 1764 it was held the court had to investigate the implications of a wife's cohabitation, asking whether a cohabitee was making a contribution to the household and if not what his capacity to make a contribution was but also that the weight to be applied arising from this feature on a variation application would turn on the facts of the case.
(iv) Any change of circumstances or assertion about needs should be backed up by specific evidence. An assertion that a particular macro-economic factor is going to have an impact on income is unlikely to be sufficient. By way of example, in FRB v DCA (No. 3) [2020] EWHC 3696 (Fam) a husband made various generalised assertions about the likely impact of the pandemic without providing proper evidence in support of his position. Cohen J found that insufficient and commented that:

“It is trite to say that the pandemic has affected different sectors in different ways”

[and that]

“It is not sufficient . . . to look to the general global financial situation. If that was the case, huge numbers of cases would be being reopened on no basis other than the fact that further inquiry might reveal something specific.”

Similarly in Li v Simons [2023] EWHC 1626, the court refused to vary spousal periodical payments because there was a lack of evidence regarding the husband's decline in income.
(v) A court looking at a variation application is likely to consider the context of the original award (given that in order to consider any change in the relevant factors it will need to consider the starting point). The difficulty here in relation to those matters resolved by consent is that the context and intention of the parties may not be apparent if there is limited contemporaneous documentation. Parties and their representatives would therefore be well advised to make sure that the reasoning behind specific terms relating to periodical payments order is properly recorded in correspondence (and a more fulsome letter to the court explaining any rationales may be called for).

The court's approach to capitalisation

Pursuant to the statute, on a variation application, the court must consider whether a clean break is achievable, whether by capitalisation (in cases where there are sufficient resources) or termination of income claims (even if neither of the parties seek a clean break). The latter can only be achieved if the court can be satisfied that any adjustment can be made without undue hardship.

In WK v GC [2023] EWFC 151 (B), HHJ Hess set out a summary of the principles derived from the case law to be applied when considering capitalisation on a variation application:

(i) In varying or discharging an income related order the court may make a capital order such as a lump sum order, property adjustment order or a pension sharing order (although note that if a pension was shared on the divorce, the same pension cannot be shared again on a variation application).
(ii) The court's power to capitalise on a variation should not be used to re-open capital claims. The court should therefore restrict itself to considering whether there should be a variation in the level of periodical payments, whether the provision can and should be capitalised, and the mathematics of the capitalisation.
(iii) In considering variation of periodical payments, the assessment is a needs-based assessment. The burden is on the payee to justify the need for ongoing dependency and the continuation of financial provision in the context of the court's obligation to consider an end to financial dependency, without undue hardship.
(iv) In deciding whether to take into account capital which the payee has at the time of the variation application, the court has a wide discretion as to whether to include such capital in the capitalisation amortisation figures. HHJ Hess noted that there is no definitive guideline from the courts on this, save a duty to promote fairness. All results are possible outcomes from amortising all of the capital to amortising none of it to any point between those points.
(v) The court can attach weight to comments made by the judge at the time of the original order. Again, it is therefore sensible to record the reasoning behind a periodical payments order where an agreement is reached and an order made by consent.

As stated at the outset, these applications can be unpredictable. The court has a wide discretion and costs can quickly mount up, potentially exceeding the sums in dispute. However, where there has been a significant change of circumstances, variation applications are an opportunity to resolve matters between the parties once and for all.