How to apply to vary a financial remedy order

Financial remedy orders made by the family court are usually final on capital issues but can be varied in respect of certain ongoing provisions. Knowing what can be varied, what cannot, and how the application process works helps you understand whether variation is the right route for your case.

This guide explains which orders are variable, what the court considers and how to make an application to vary.

What can be varied?

Under the Matrimonial Causes Act 1973, certain types of financial remedy order can be varied. The most commonly varied are:

• Periodical payments orders (spousal maintenance)
• Secured periodical payments orders
• Maintenance pending suit
• Periodical payments orders for the benefit of a child
• Settlement of property orders that have not yet been implemented
• Variation of settlement orders made under section 24(1)(c) or (d)
• The instalment provisions of lump sum orders (the principal lump sum cannot be varied)
• Pension attachment orders

What cannot be varied?

Some orders are not capable of variation. The main categories are:

• The principal amount of a lump sum order
• Property transfer orders that have been implemented
• Pension sharing orders (once implemented)
• Final clean break orders dismissing all claims

If you want to challenge an order that is not variable, the right route may be set aside or appeal rather than variation.

The legal test for variation

Section 31 of the Matrimonial Causes Act 1973 gives the court power to vary periodical payments and other variable orders. The court will consider all the circumstances, including:

• The change in circumstances since the order was made
• The age, health and earning capacity of each party
• The income and financial resources of each party
• The financial needs of each party
• Any new family obligations
• The standard of living before and after the breakdown
• The contributions made by each party

The court must also consider whether a clean break can now be achieved, even if it was not appropriate when the original order was made.

When variation is most often sought

Income reduction

The paying party loses their job, takes a pay cut, retires or suffers ill health that affects earning capacity.

Income increase

The receiving party significantly improves their financial position (new job, inheritance, business success).

New relationships

The receiving party enters a new relationship that improves their financial position, even if they have not remarried.

Cohabitation

The receiving party begins cohabiting with a new partner. This is not automatic grounds for terminating maintenance but is a factor.

Retirement

One party reaches retirement age and their income changes substantially.

Children growing up

Where periodical payments include provision for children, those may need to be varied as the children grow older or finish education.

The procedure

The application

A variation application is typically made on Form A1 (or Form D11 in some courts). The form requires details of the order to be varied and the changes sought.

Financial disclosure

Both parties are usually required to provide updated financial disclosure. This is normally done by Form E1, which is a more focused version of Form E used for variation applications.

Hearings

Variation cases follow a similar structure to original financial remedy proceedings:

• A First Hearing (or First Appointment) to identify issues
• A Financial Dispute Resolution hearing to encourage settlement
• A final hearing if needed

Many variation cases settle at the FDR stage.

The court fee

A court fee is payable on the variation application. The amount is set out in the family court fee schedule.

The clean break question

One of the most important issues in variation proceedings is whether a clean break can now be achieved. The court has a statutory duty to consider this at every variation hearing.

If the receiving party has become substantially self-sufficient, or if a capitalised lump sum can replace the ongoing payments, the court will often impose a clean break. This means the receiving party gives up future periodical payments in exchange for a one-off capital payment or simply because they no longer need support.

The "substantial change of circumstances" test

While there is no formal rule that variation requires a "substantial" change of circumstances, in practice the court is unlikely to vary an order based on a small change. The change should be material, lasting and not one that the parties anticipated when the original order was made.

A short-term reduction in income (for example, a month of reduced bonuses) is unlikely to justify variation. A lasting change (job loss with no realistic prospect of equivalent earnings, serious ill health, retirement) is much more likely to succeed.

Common arguments at variation hearings

The paying party

Usually argues that their financial position has worsened, that the receiving party no longer needs as much, or that a clean break is now achievable.

The receiving party

Usually argues that their needs continue, that they have not become self-sufficient, and that a clean break would leave them inadequately provided for.

The strength of each argument depends on the specific facts and the documentary evidence.

Evidence the court will look at

• Updated financial disclosure from both parties
• Pay records, P60s, tax returns and bank statements
• Records of cohabitation or new relationships where relevant
• Medical records where ill health is in issue
• Evidence of efforts to find work where the paying party claims reduced earning capacity
• Records of the receiving party's living circumstances and needs

Common mistakes in variation applications

Bringing an application without evidence

The court needs documentary evidence of the change of circumstances. Assertion alone is rarely enough.

Applying for variation when set aside is the right route

If the original order was obtained on a flawed basis (fraud, non-disclosure), set aside may be more appropriate than variation.

Applying to vary the wrong type of order

The principal of a lump sum order cannot be varied. Some applicants try to vary orders that are not variable. Taking advice on which route is available avoids wasted costs.

Delaying

If circumstances change, do not wait years before applying. Continuing to pay or receive the wrong amount during a long delay can create complications.

Failing to seek a clean break

If you are paying maintenance and your former spouse is now able to support themselves, ask the court for a clean break. The court will only consider it if you raise it.

Negotiation before the application

Many variation issues can be resolved without court proceedings. A measured approach often involves:

• A written explanation of the change of circumstances
• A proposal for amended payments
• Supporting evidence
• A request for the other party's response

If the other party agrees, a consent order varying the original arrangement can be drafted and submitted. This is significantly cheaper than contested proceedings.

When to take legal advice

Variation applications can be straightforward or highly contested. The evidence needs to be marshalled carefully, and the right route (variation, set aside, appeal) needs to be chosen at the outset.

A direct access barrister with financial remedy experience can advise on the prospects of an application, the right route, and the evidence needed. Many variation cases are resolved efficiently with the right approach.

Talk to a specialist barrister about your matter

If the issues in this guide apply to your situation, our team can match you with a barrister who works on cases like yours every week. The enquiry is free and you will receive a clear fixed-fee quote before any work begins. Start your enquiry here.