Can a variation of maintenance be reviewed by a court where a previous court order has been issued for spousal maintenance as part of a divorce settlement?
In some divorce settlements the court orders under the Matrimonial Causes Act 1973 the payment of spousal maintenance for life. This usually means that unless the recipient remarries (in which case maintenance automatically terminates), the maintenance order lasts until the recipient’s death.
What are the options therefore for variation of the maintenance order or bringing the order to an end?
Spousal maintenance is always variable by the payer or recipient. The Matrimonial Causes Act 1973 gives the Court power to vary a maintenance order. The outcome of a variation will be based on the needs, resources and earning capacity of the recipient and the ability to pay of the payer. In all cases, the court has the power to terminate maintenance by what is called a Section 28 bar. It will however only do this if satisfied that a clean break is financially appropriate.
Another option is for the existing maintenance order to be “capitalised”. This means that the maintenance order is terminated and in its place the recipient gets a lump sum of money. This is usually calculated by reference to “Duxbury” tables which are actuarial tables which calculate the sum of money needed to achieve a required income bearing in mind life expectancies and estimated rates of return and length of the maintenance order.
When would a court capitalise maintenance?
- Often the couple agree that would be best – they don’t want to have the stress of repeated variation applications and both want certainty; or
- Even if agreement is not possible, in the interests of a clean break the court will sometimes impose a capitalisation on request of one party if there is sufficient capital. In all cases now the court is required to consider a clean break and capitalisation provides that opportunity.
Variation and capitalisation of maintenance are complex areas with rapidly changing caselaw and it is always wise to seek expert advice before contemplating an application to court. A further complication can arise following Brexit if the payer of the maintenance is abroad. A varied Order made post Brexit may not be recognised by some foreign Courts. So, this underlines the importance of taking legal advice when considering any variation.