Spousal maintenance can be an important part of a financial settlement following divorce, particularly where there is a significant difference between the former spouses’ incomes or earning capacities. But circumstances do not always remain the same after a divorce is finalised.

Income may rise or fall. One former spouse may retire, lose their job or become financially independent. Living costs can change significantly, and new family responsibilities may arise. For that reason, an existing spousal maintenance arrangement is not necessarily set in stone.

In England and Wales, it may be possible to apply to the court for a variation of spousal maintenance where circumstances have changed. Depending on the facts of the case, maintenance may be increased, reduced, brought to an end or, in some circumstances, converted into a lump sum.

If you are concerned that the maintenance you pay or receive no longer reflects your circumstances, obtaining advice from a specialist spousal maintenance solicitor in London at an early stage can help you understand your options.

What is spousal maintenance?

Spousal maintenance is a regular payment made by one former spouse to the other following separation or divorce. Its purpose is to provide financial support where the recipient cannot reasonably meet their needs from their own income or other resources.

Whether spousal maintenance should be paid, how much should be paid and for how long will depend on the individual circumstances of the marriage.

For example, one spouse may have been the primary earner throughout a long marriage while the other gave up or reduced their career to raise children. Following divorce, there may therefore be a substantial difference between their respective incomes and earning capacities.

Maintenance can sometimes be agreed between the parties as part of their overall financial settlement following divorce. If agreement cannot be reached, the court can determine whether periodical payments should be made.

The order may last for a specified period or, in some cases, be made on a joint-lives basis, although the courts increasingly consider whether and when financial independence can realistically be achieved.

Can spousal maintenance be changed?

Yes. A court order for spousal maintenance may potentially be varied when there has been a material change in circumstances.

A variation of spousal maintenance can work in either direction. The person making the payments may seek a reduction or termination of maintenance, while the recipient may seek an increase if their financial circumstances have changed.

Changes that could be relevant include:

• A significant increase or decrease in either party’s income
• Job loss or a substantial change in employment
• Increased or decreased living expenses
• Retirement
• Changes in the recipient’s earning capacity
• The birth of a new child or other significant financial responsibilities
• Changes in housing or other financial needs

The effect of remarriage can also be important. In particular, the recipient’s remarriage will generally bring ongoing spousal periodical payments to an end.

There is no automatic formula that determines whether a variation should be made. The court will consider the circumstances of the particular case and the financial position of both former spouses.

This means that anyone considering an application should obtain advice before assuming that a change in their personal circumstances will automatically lead to a different maintenance payment.

What can the court do when maintenance is varied?

The court has considerable discretion when considering an application to vary an existing maintenance order.

It may decide to increase or decrease the level of maintenance, depending on the parties’ current resources and needs.

But those are not the only possibilities. Depending on the circumstances, the court may also be able to:

• Introduce an end date where the original order did not have one
• Bring maintenance payments to an end
• Deal with certain maintenance arrears
• Capitalise future maintenance by replacing ongoing payments with a lump sum

A variation application can therefore have significant long-term financial consequences for both parties.

For someone receiving maintenance, an unsuccessful application or downward variation may affect their future financial security. For the paying party, continuing with an order that no longer reflects current circumstances can result in a substantial ongoing financial commitment.

A specialist spousal maintenance lawyer in London can assess not only what has changed since the original order but also whether that change is likely to justify returning to court.

What if the recipient could become financially independent?

One recurring issue in spousal maintenance cases is whether the person receiving maintenance could reasonably be expected to increase their own income.

The answer will always depend upon the circumstances.

Someone who has spent many years outside the workplace caring for children may not immediately be able to return to employment at a level that allows them to support themselves. Their age, qualifications, previous career, health, childcare responsibilities and the length of time they have been out of work can all be relevant.

However, an existing maintenance order should not necessarily be regarded as a guarantee that the same level of payments will continue indefinitely.

The case of Wright v Wright [2015] EWCA Civ 201 provides a useful example.

Wright v Wright – reducing spousal maintenance

In Wright v Wright, the original financial order required the husband to pay spousal maintenance to his former wife on a joint-lives basis.

Several years later, the husband applied for a downward variation. His financial circumstances had deteriorated and his retirement was approaching. An important additional factor was that, when the original order had been made, the wife had been expected over time to begin contributing towards her own financial needs.

The court considered her previous employment experience, earning capacity and the fact that she had not taken steps to return to work or retrain.

Maintenance was reduced progressively, with payments ultimately due to come to an end. The attempt to challenge that decision in the Court of Appeal was unsuccessful.

The case demonstrates an important point: even where maintenance was originally ordered on a joint-lives basis, the court can reconsider the arrangement as circumstances develop. A recipient’s ability to contribute towards their own needs may form an important part of that assessment.

Can spousal maintenance be increased?

Variation is a two-way street. A recipient can also ask the court to increase maintenance.

That does not mean, however, that every later financial difficulty will justify an increase.

One of the leading cases in this area is Mills v Mills [2018] UKSC 38.

When the couple originally divorced, the wife received capital as part of the financial settlement as well as ongoing periodical payments. In subsequent years, a series of property transactions left her without the capital originally intended to help meet her housing needs, and she was living in rented accommodation.

She sought an increase in maintenance which would take account of her rent.

The dispute ultimately reached the Supreme Court. The Court decided that the husband should not be required through increased maintenance to meet housing costs that had already been provided for through the original capital settlement.

The case illustrates why an application to increase maintenance requires careful analysis of why the recipient’s financial circumstances have changed, not simply whether their current expenditure has increased.

Spousal maintenance and the move towards a clean break

English family law places considerable importance on considering whether former spouses can ultimately become financially independent of one another where that is achievable without undue hardship.

A clean break means that the parties no longer have continuing financial claims against one another of the type covered by the order.

That does not mean a clean break will be appropriate immediately in every divorce. After a long marriage, particularly where one spouse has sacrificed their career to care for children or support the family, continuing maintenance may be necessary.

In other cases, the court may consider a fixed-term maintenance order appropriate. This could provide support for several years while the recipient retrains, returns to employment or otherwise works towards greater financial independence.

Where appropriate, a court may also consider capitalising future maintenance. Instead of continuing monthly payments, a lump sum may be ordered to bring the ongoing maintenance obligation to an end.

Whether such an arrangement is appropriate needs careful financial analysis. The implications can be substantial for both sides, so it should normally be considered as part of the wider financial order after divorce, rather than looking at monthly maintenance in isolation.

What about international spousal maintenance?

Maintenance issues can become more complicated where former spouses live in different countries.

A couple may have divorced in England but one party subsequently moves abroad. Alternatively, an international family may have connections with several jurisdictions, foreign income, overseas property or financial orders made in another country.

Questions surrounding international spousal maintenance may therefore involve not only how much maintenance should be paid, but also which court has jurisdiction and how an order can be recognised or enforced across borders.

Beyer Family Law regularly advises clients whose family and financial lives span more than one country. Where there is an international element, taking advice before applying to vary an order can be particularly important because the interaction between different legal systems may affect the options available.

Should I apply to vary my spousal maintenance?

If your financial circumstances have changed substantially since your original divorce settlement, it may be sensible to review the maintenance arrangement.

For someone paying maintenance, this could arise because income has fallen, retirement is approaching or the recipient has developed a greater earning capacity.

For someone receiving maintenance, the issue may arise because their needs have changed materially or the existing level of support is no longer sufficient.

However, an application for variation of spousal maintenance should not be made lightly. The court can look carefully at the financial circumstances of both parties, and the outcome may not necessarily be the one sought by the person making the application.

Getting specialist advice at an early stage can help establish whether an application is appropriate and what evidence is likely to be required.

Speak to a spousal maintenance solicitor in London

If you believe that the amount of spousal maintenance you are paying – or receiving – no longer reflects your financial circumstances, we can help you understand your position.

Beyer Family Law has extensive experience advising on spousal maintenance claims, including applications to vary existing orders and cases involving complex or international finances.

We can advise both paying and receiving parties and, where possible, seek to resolve matters through negotiation without the need for a contested court hearing.

For international families, we can also advise where maintenance forms part of a wider cross-border divorce or financial settlement.

Call Beyer Family Law on +44 (0)20 8616 8560 or email mail@beyerfamilylaw.com for a free initial telephone consultation.