After a court order has been made, perhaps a few years down the line, one of the parties may want to vary the order.

Consideration would then need to be given to section 31 of The Matrimonial Causes Act 1973.  Under that section the court can vary or discharge certain types of order.

The most important powers are to vary:

  • An order for maintenance pending suit;
  • A periodical payments order [maintenance];
  • A lump sum order payable by instalments;
  • An order for the sale of property;
  • A pension sharing order [before decree absolute].

Firstly a note on lump sums payable by instalments.  There is a decided case on this point: Hamilton v Hamilton [2013] EWCA Civ 13.  In that case it was decided that the court’s power to vary does indeed only apply to a lump sum payable by instalments.  So if a Husband was ordered to pay a lump sum of £100,000 in 5 instalments of £20,000 then in theory he could come back to court to vary the order.  If on the other hand the order was expressed as “a series of lump sums of £20,000 x 5” on the face of it, he would not be entitled to apply to vary the order.  For this reason, many wives, when they are negotiating a settlement require an order to be expressed as “a series of lump sums” rather than “payable by instalments”.  This is to prevent a husband coming back to court to vary the order.

The most important power to vary is in relation to periodical payments.  Sometimes a court will make a periodical payments order which is to last for a long time, for example a joint lives order.  It may be that some years down the line an application is made to vary the order.

A Husband who is paying maintenance might say: a long time has gone by since the order and I can’t afford to pay it any more.  Alternatively he might say: my ex-wife no longer needs the money.

On the other side of the coin, an ex-wife might say: the order is not enough for me to get by, I need to increase the amount I get each month.  She might also say: my ex-husband’s income has gone up, so the maintenance I get each month should go up as well.