Clients often ask when they are entering into a maintenance agreement with a former partner or spouse, whether the maintenance agreement can be changed at a later date if their particular circumstances change. The answer is yes, but in order to alter maintenance, a change of circumstances must be shown.
In a judgment published last week, Ms. Justice Jackson in the case of RJ v EK set out the criteria which must be considered if maintenance is to be varied, and referred to a two-stage process, namely if there has been a change of circumstances; and if so, then there must be an examination of such circumstances to determine whether a variation or discharge would be fair.
Jackson J said that the term “fundamental change” is sometimes used as a prerequisite to variation, and while there is no reference in the legislation to the nature of the change required, she made it clear that such a change must be “real and not trivial in nature”.
In this case, the Respondent (the husband) was paying his former wife €385 a month in maintenance. The initial maintenance order was made in 2005 and since that date, there had been a significant change in both parties’ circumstances. The Applicant (wife) had re-entered the workforce and was earning more than the Respondent and the Respondent had been forced into early retirement due to an injury and also had entered into a personal insolvency arrangement.
It was held by Jackson J that given the change in circumstances; it was appropriate that the maintenance order be discharged immediately but no recovery of maintenance paid to date was allowed.
There is no standard formula for calculation of the appropriate financial provision in divorce proceedings and following on from this there is no way to know what the future may hold when agreeing maintenance. The recent decision should provide a level of comfort to anyone entering into a maintenance agreement that if circumstances were to change significantly, then there is an avenue open to them to seek a variation of the order made. It is worth noting that periodic maintenance orders are never final in nature, so a review is always possible.
For further information on this or any other Family Law matter, please do not hesitate to contact Brendan Dillon, Emma Dillon or Aoife Cathcart on 01 2960666.
