Variation Of Periodical Payments

Section 31 of the Matrimonial Causes Act 1973 provides the Court with the power to vary, discharge, suspend or revive previous Court orders, including a periodical payments order (often referred to as spousal maintenance). A periodical payments order is a payment made out of the income of one spouse to provide for the other. The test which the Court must consider is…

“…all of the circumstances of the case; first consideration being given to the welfare of any child of the family who has not attained the age of 18.”

There is a duty of the Court to impose a “clean break”. Specifically, the Court should consider whether, in all of the circumstances, it would be appropriate to vary the order, for the payee to adjust without experiencing undue hardship.

In order to consider the potential merits of an application to vary, it is essential to consider case law on this subject.

Vaughan v Vaughan [2010] EWCA Civ 349
  • The husband was originally ordered to pay the wife £27,000 per annum in periodical payments.
  • The husband sought to discharge such payments and the wife cross applied for a capitalised lump sum.
  • The appeal was upheld and it was ordered that the husband pay the wife a lump sum of £215,000 to be paid in lieu of periodical payments.
Wright v Wright [2015]
  • The husband was a 59 year old equine surgeon. The wife was 51 and unemployed.
  • In 2008 it was ordered that the husband would pay the wife £32,000 on a joint lives basis. The Judge made it clear that the wife would be expected to look for work or retrain within a period of two years.
  • The wife made no effort to find work. The husband’s circumstances changed and he applied to vary the order downwards.
  • The Judge found it appropriate to vary the maintenance. It was ordered that the maintenance should be scaled down over a period of six years.
  • The wife’s application for permission to appeal was refused.
NS v SS [2014] EWHC 4143 (Fam)

In this case helpful guidelines were provided, which are summarised below:

  • A spousal maintenance award is properly made where the evidence shows that choices made during the marriage have generated hard future needs on the part of the claimant. The duration of the marriage and the presence of children are pivotal factors.
  • A spousal maintenance award should only be made reference to needs, save in the most exceptional of circumstances where the sharing or compensation principle applies.
  • In every case the Court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable.
  • The marital standard of living is relevant to the quantum of the spousal maintenance award but that is not decisive.
  • The task of the Judge is not only to examine the claimant’s budget, but also to look at the global total and ask if it represents a fair proportion of the respondent’s available income.

Overall, there is broad judicial discretion and each case will turn on its own specific facts.

If you require advice on this topic, then please contact a member of Nelsons’ Family Law team on 0800 024 1976 or email newbusinessteam@nelsonslaw.co.uk