Varying and Setting Aside Matrimonial Orders. Part 1
Particularly at the present time, financial circumstances change-often for the worse. If this happens after an Order has been made by the Court in Ancillary Financial Proceedings on divorce the question arises as to whether the Order can be set aside or varied. This series of articles deals with the question of whether financial orders made in divorce proceedings- by consent or otherwise- can be changed, set aside, or varied when circumstances change after the order has been made. This first part deals with whether the court will vary an order on further application after the original order was made.
It is not all orders which are capable of being varied. Final orders are just that-final. However most 'income' orders such as for maintenance as opposed to 'capital' orders for such things as property adjustment can be varied. With capital orders it is only if they are to be paid by installments that the rate of payment can be varied.
The orders which can be varied are these:
-maintenance pending suit or interim maintenance orders;
-periodical payments orders whether secured or unsecured subject to any order that the recipient may not apply for an extension of the specified term
-payment of a lump sum or other amount by installments
-orders for maintenance or periodical payments for a child
-a deferred lump sum order which includes provision in respect of -pension rights but only until the death of either party.
-an order relating to the settlement of property for the benefit of a spouse or children of the family made following a judicial separation where there are subsequent divorce proceedings.
-an order for the sale of property where this is specified in an order for secured periodical payments or for the payment of a lump sum or in a property adjustment order;
-a pension sharing order
Orders which cannot be varied.
-lump sum orders not payable by installments;
-property adjustment orders;
-a pension sharing order after the decree has been made absolute.
If an order is capable of being varied the Court has an almost unrestricted power to not only vary but also to backdate the variation. It is theoretically possible to backdate a variation to the date of the original order but usually backdating does not extend beyond the date of the application.
A word of warning for anyone who has not paid maintenance ordered or not complied with an order made. This can be considered as a contempt of court and a party in contempt can be prevented from being heard in a variation application. Good reason must therefore be put forward if you are in this position and your application to vary should be made as soon as you are aware that you will not be able to make the payments ordered.
The court has a wide discretion when considering variation applications and when the welfare of a child is involved this will as always be a first consideration. After this the court will look at any changes to the matters of which the court had regard when it made the original order. There remains a duty to obtain a clean break where this is possible without causing 'undue hardship' although there is no presumption in favour of a clean break. Often a nominal maintenance order of perhaps 1 a year will be ordered when there is a variation to enable a further application should the paying parties financial situation improve rather than terminating the maintenance order altogether.
If the income of one party is descending and the income of the other ascending there is likely to be a variation to take account of this. Likewise with any increase or decrease in responsibilities There is life after divorce, and if financial circumstances have made compliance with an order impossible the court will vary it's order to allow for future aspirations and responsibilities. The overriding objective will always be 'fairness'.
The second part of this article will consider examples of how the courts have dealt with various applications and go on to look at setting aside orders and when this can be done.