Varying a Court Order after Divorce

Varying a Court Order after Divorce

Clients often approach us to seek advice on what they can do to have their existing Court Orders revised or amended. These applications to revise and/or amend existing Court Orders are known as applications to vary an Order.

Applications to vary an Order may be sought for various reasons. Most commonly, these applications concern child and/or wife maintenance obligations under the existing Orders. This usually arises because the maintenance obligations under the existing Orders are no longer accurate in representing the relevant persons’ financial needs. This article will therefore focus on this particular type of variation, variation of wife and child maintenance obligations under existing Orders.

How do I vary a maintenance obligation in a Court Order?

The Court permits applications to vary a maintenance obligation under section 72(1) of the Women’s Charter. The application to vary can be taken out by either:

  • the person who is obligated to pay the maintenance; or
  • the person who is to entitled to the maintenance payment from the other party.

To seek such a variation, the applicant must be able to demonstrate that there has been a change of circumstances:

  • of the person making the application;
  • of the child for whom the order on maintenance is made for;
  • of the wife; and/or
  • any other good cause.

The Court exercises discretion when considering an application to vary a Court Order. As such, the outcome of such an application depends very much on the individual facts and circumstances of each case.

Should I Seek To Vary The Existing Maintenance Orders?

In most cases, the need for variation arises because several years would have passed since the making of the Court Order. For example, in that time:

  • the expenses of the child (and/or wife, where applicable) may have changed (either increasing or decreasing); and/or
  • the circumstances of the party liable to pay maintenance for the child (and wife, where applicable) may have changed for various reasons (e.g. retrenchment, illness, etc…) such that he or she is no longer able to pay the sum of the monthly maintenance payment.

The above examples illustrate the practical difficulties with having a continuing maintenance obligation, as circumstances of both parties and their children are constantly changing with time. If you feel that any of the above applies to you, it would be prudent to consider an application to vary the Orders which govern wife and child maintenance.

How Will A Variation Benefit Me?

For parties liable to pay maintenance under an Order, non-payment of these obligations can attract costly enforcement procedures and other financial penalties.

Therefore, it would be prudent for persons who anticipate that they are not able to make these payments as a result of a change of his or her circumstances, to pre-preemptively look into making an application to vary their monthly maintenance payment obligations.

Alternatively, if the party liable to make payment is of the view that circumstances have changed such that the expenses of the children (and/or wife, where applicable) have decreased owing to a change of circumstances, the party liable to pay should also consider taking out an application to vary the sum of maintenance monies. This is because sum of maintenance monies would no longer be accurate in reflecting the amount needed to support the children and/or wife.

For parties who are entitled to receive maintenance monies, but are no longer able to get by with the sum of maintenance monies stated in the Order, it is also crucial to look into making an application to vary the amount that they are entitled to receive for continued good upkeep of the children and/or wife. Such persons should also document the ways in which the amount set in the Court Order is no longer sufficient to cover reasonably necessary expenses in good detail to support their case.

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