A maintenance amount is fixed on the basis of the circumstances at the time it was set. When those circumstances change, the amount can be recalculated – by agreement between the parties, or by the court on the application of either of them.

Two things are needed for a court to vary maintenance: a relevant change of circumstances since the amount was set, and the fact that the amount no longer meets the statutory standards as a result. A drop in income that leaves the payer perfectly able to pay does not by itself lead to a reduction.

What counts as a change of circumstances

On the payer’s side: losing a job or a substantial fall in income, a new maintenance obligation because of another child, a serious change in the cost of living, retirement. On the recipient’s side: starting or increasing work, a substantial rise in income, or cohabiting with a new partner as if married, which ends spousal maintenance altogether.

On the children’s side: a change in the care arrangement, or the child reaching an age at which the applicable norms change. A change in the care arrangement is frequently overlooked as a ground even though it directly affects the calculation.

An income reduction the payer brought about voluntarily and could reasonably have avoided is generally disregarded: the court will calculate on the earning capacity rather than on the actual income.

Agreeing a change

Parties can agree a new amount at any time, and doing so avoids proceedings entirely. Record it in writing and in enough detail to be enforceable: the new amount, the date from which it applies, and whether statutory indexation continues to run. An informal arrangement by message, followed by years of payment at a different figure, produces exactly the argument about arrears that the agreement was meant to prevent.

Where a covenant provides that maintenance cannot be varied, that clause binds the parties, and only a substantial change of circumstances of a kind that makes holding a party to it unacceptable will displace it.

Applying to the court

The application is made by petition through a lawyer. The court recalculates using the standard maintenance guidelines, which means both parties must produce complete financial information: recent payslips, annual statements, tax returns, and for the self-employed the accounts.

The court can set a new amount with effect from a date it determines, and that date can be earlier than the decision – in principle from the date of the application. Where it does so and the payer has been paying more in the meantime, recovering the overpayment is often refused on the ground that maintenance has already been consumed, so the timing of the application matters financially.

Do not simply stop paying

The most expensive mistake in this area is to reduce or stop payment unilaterally because circumstances have changed. Until the amount is varied, the existing obligation stands, arrears accumulate, and collection can be enforced through the maintenance collection agency or by attachment of wages. Apply first, adjust afterwards.

Advice

We calculate what a change of circumstances should mean, negotiate a revised arrangement where that is possible, and conduct variation proceedings where it is not. Please contact Law & More.