A variation or change to the level or duration of an order for maintenance payments might happen:

• Automatically because it was provided for in the original order; or
• As a new order because a successful application is made to the Court to change the original order.

All sorts of things might have rendered the original Court order out of date, for example:

• Changes in the law
• Changes in earnings, or a sudden influx of capital
• The start or end of a new relationship
• Inflation.

The application to change the original order is called “an application to vary” and the changed order is called “a variation”. Our maintenance indexation calculator can give you an indication of how inflation might have affected your original order. We have set out below an outline of the legal position and practical tips on how to take things forward. A more detailed analysis can be found in our blog on variations.

Please note that particular complications can arise with maintenance for children. Our advice is to have at least one session with one of our specialist family lawyers to find out how best to move forward.

Automatic changes

A variation to the level or duration of the original order might happen automatically because it was provided for in the original order by “indexation”. Indexation refers to the way that Courts commonly order maintenance awards to increase. We have developed a maintenance indexation calculator to help you work out how your maintenance payments might be affected by indexation.

Change occurring by an application to the Court to vary the original order

This involves going back to the Court for a new order. It can carry risks:

• There is uncertainty – the Court has a free hand – so predicting precisely what will happen is usually impossible.
• There are costs involved. It may well be intrusive and it will take time and effort.
• The order may go up or down and so getting the best input possible as to the strength of your case (either at court or in the negotiations) is a crucial first task.

You will need the original Court Order which the court can usually provide if you don’t have it. You can’t ask for a variation without showing that there has been a change of circumstance so you have to show what was each side’s position when the original order was made. If you reached agreement without going to Court, the Court will have required a “statement of information” or “form D81”. If the order was made at Court then identifying the precise financial position put to the Court may be more difficult. We can assist in tracking down the right information.

Get advice. Going back to the barrister who helped you may be a good choice. Others may prefer to get a new view. At FLiP, we know that any Court application must be fully justified in terms of the scale of the likely benefit and the cost of securing the variation. We aim to provide an efficient and economic assessment of the prospects of success.

Payments between spouses

• Such arrangements end automatically if the recipient remarries.
• The original order may set out various events that will terminate the order.
• Otherwise almost anything is now possible by agreement or Court order.

Payments for a child

These will be payments made through the Child Support Agency (CSA) or Child Maintenance Service (CMS) or payments made by virtue of a Court order. These arrangements are often highly technical because two organisations might be involved and the interface between them can be problematic.

The Court may have made an order. But for most people, there is the opportunity to involve the CMS too – the CMS order will trump the Court order (save if the payer’s income exceeds £156,000 before tax) and usually terminate it for all purposes.

It will be crucial to establish whether there is a right to apply to the CMS as this will terminate the Court order after a short delay. There are also complex rules about how long payments can last.The CMS usually falls away again at the end of August after A-levels and then responsibility is passed back to the Courts. Against this confused structure there is encouragement to reach your own agreement.

Duration

Common arrangements are:

• Immediate termination – the order has ended the possibility of a variation already.
• “Joint lives” – there will be a duty to pay until the first spouse dies.
• Delayed termination, which is of two sorts:
  • • the order will end on a specific date unless an order is made to extend the arrangement beforehand.  Making an application to do so in good time will be crucial.
    • an order with a prohibition on applying to extend (called a “section 28(1A) bar”).

Selecting the right process to pursue your claim is crucial. Everyone’s circumstances are different and no one approach will be suitable for everyone.

• DIY – Where the right solution can be reached by agreement this is likely to be the preferred approach: usually you will want to record the new arrangement formally but this can be managed more cheaply when the figures are agreed.
• Supported dialogue – Mediated or collaborative approaches can provide an affordable option.
• Arbitration – Where early agreement is not possible consider whether it is worth applying to the Court for a final decision. We offer arbitration as an alternative to the Court process and to streamline the process and ensure early, affordable decisions.  This can be through FLiP presenting your case to an arbitrator or by you appointing one of our arbitrators to assist in settling your dispute. You do not need to be represented to bring your case to an arbitrator.
• Litigation Technical cases are hard to take through the Court without professional support and it is hard to secure an order for a contribution to costs even if your case is successful.

Our maintenance indexation calculator can give you an indication of how inflation might have affected your original order. 

If you have any queries on the maintenance indexation calculator, please email Stephanie Dodman E:sd@flip.co.uk and James Pirrie E: jp@flip.co.uk.

If you require advice on your particular situation, please contact James Pirrie at E: jp@flip.co.uk or T: 020 7420 5000.