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.
Under the Matrimonial Causes Act 1973, certain types of financial remedy order can be varied. The most commonly varied are:
Some orders are not capable of variation. The main categories are:
If you want to challenge an order that is not variable, the right route may be set aside or appeal rather than 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 court must also consider whether a clean break can now be achieved, even if it was not appropriate when the original order was made.
The paying party loses their job, takes a pay cut, retires or suffers ill health that affects earning capacity.
The receiving party significantly improves their financial position (new job, inheritance, business success).
The receiving party enters a new relationship that improves their financial position, even if they have not remarried.
The receiving party begins cohabiting with a new partner. This is not automatic grounds for terminating maintenance but is a factor.
One party reaches retirement age and their income changes substantially.
Where periodical payments include provision for children, those may need to be varied as the children grow older or finish education.
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.
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.
Variation cases follow a similar structure to original financial remedy proceedings:
Many variation cases settle at the FDR stage.
A court fee is payable on the variation application. The amount is set out in the family court fee schedule.
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.
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.
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.
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.
The court needs documentary evidence of the change of circumstances. Assertion alone is rarely enough.
If the original order was obtained on a flawed basis (fraud, non-disclosure), set aside may be more appropriate than variation.
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.
If circumstances change, do not wait years before applying. Continuing to pay or receive the wrong amount during a long delay can create complications.
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.
Many variation issues can be resolved without court proceedings. A measured approach often involves:
If the other party agrees, a consent order varying the original arrangement can be drafted and submitted. This is significantly cheaper than contested proceedings.
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.
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.