The Court of Appeal recently ordered that a divorced wife should receive additional money from her former husband, despite agreeing a settlement almost 15 years ago.
She was initially awarded £230,000 in 2002 in addition to £1,100 in monthly maintenance. She went on to invest the lump sum in properties, which failed to realise a worthy investment. As a result, she was left in debt and applied to the court for a higher pay-out almost 15 years after the divorce.
The Court of Appeal ordered the ex-husband to increase his monthly maintenance payments to £1,441 as his ex-wife was “unable to meet her basic needs”.
Why was she able to vary her divorce settlement?
Following a divorce settlement, the courts can vary maintenance payments if there has been a significant change in circumstances.
In this case, the court felt that the ex-wife’s inability to “meet her basic needs” fulfilled this criterion. The judge explained that the ex-wife had been “hindered” by health problems since the divorce and she had to support herself whilst raising a child. The judge therefore calculated that the ex-wife needed £1,441 a month to sustain her needs.
It is common for the court to vary the settlement by increasing or decreasing the maintenance allowance, however in this case, the court not only increased the monthly maintenance payment, it also stated that the ex-wife would be awarded this payment for the duration of her life. This may have constituted a variation of not just the amount – but also the term – of the maintenance.
Can I vary my divorce settlement?
In rare occasions, a court can vary a sequence of lump sum payments that are awarded initially. However, it is more common to apply to the court to vary periodic maintenance payments. The court will look at each party’s current and past financial situation before deciding on whether to alter the original settlement.
How can I obtain a divorce settlement that cannot be varied?
It is common for individuals to sacrifice ongoing maintenance payments for a larger proportion of the available capital: a one-off lump sum payment (with the associated dismissal of capital claims) can’t be varied at a later date as a matter of course.
If a settlement does include maintenance, a bar can be included at the time of the divorce which would stop an ex-spouse from increasing the duration of maintenance payments.
How will this affect my case?
This cases raises many questions which will no doubt be brought in front of the Court again, so must be considered by those going through legal proceedings, including:
– Should an ex-spouse be responsible for their ex-wife/ex-husband’s financial decisions following a divorce?
– Should the ex-spouse stay completely independent even if this means one party is left in a considerable weaker position than the other?
– Should there be a time bar on how long an ex-spouse is responsible for maintenance payments?
If you believe that you have a change of circumstance justifying a change in your divorce settlement or have been pursued many years after settling a divorce, then seek legal advice as soon as possible.
Eileen Macqueen is a senior solicitor in the Family Department at Devonshires, one of the UK’s leading full service law firms.
Based at the firm’s office in Finsbury Circus, London, Eileen has qualified as a solicitor-advocate (with Higher Rights of Audience) and can therefore undertake advocacy on behalf of her clients.
She is also a member of Resolution, an organisation of 6,500 family lawyers and other professionals in England and Wales who believe in a constructive, non-confrontational approach to family law matters.