Applications to Vary an Order Legal advice on varying a court order from family law experts

It is important not to breach the terms of a court order, as there may be consequences. However, it may be possible to ask the court to vary the terms of an order.

We can represent you in putting together an application to vary a court order and advise you on the correct process to follow. Our family law team have extensive court experience and will ensure that a robust case is put forward on your behalf.

Amending a child arrangements order

The main type of order that is likely to need amending is a child arrangements order. As children get older, their wishes and needs may evolve and their parents’ circumstances may also change. For example, parents may take up a job in a different location , work different hours, or move to a home further away making after school contact harder to facilitate. There may also be legitimate concerns from one parent about the welfare of the child whilst s/he is in the care of the other parent.

Ideally, you should agree on the new arrangements with your child’s other parent and obtain their consent to the original order being varied. However, if they are not in agreement, mediation may help you find an acceptable solution, and we can offer you guidance through this process. If meditation is not a viable option or if mediation fails, the only option is to make an application to court to vary the previous Order.

We will advise you as to the merits of an application to vary an existing Order and will present a comprehensive case on your behalf to give you a good chance of achieving a fair outcome, which serves in the best interests of the child.

Obtaining the court’s agreement to the amendment of a child arrangements order

The court’s primary concern will always be to ascertain what is in the child’s best interests. Depending on the age of your child, the court will take their wishes into consideration and may ask the Children and Family Court Advisory and Support Service (Cafcass) to make a report based on the child’s feelings and any other relevant welfare issues.

If the court varies the order, it can change its previous decision on matters such as primary residence and determine how often the child sees the non-resident parent, at which location contact takes place, and for how long. The court can also make variation Orders with regard to specific issues such as the change of location of the primary carer, and make prohibited steps Orders to prevent one or both parents from removing the child from the jurisdiction, save for in limited or specific circumstances.

Varying a Spousal Maintenance Order

Whilst the courts are now less keen on awarding long-term spousal maintenance payments in financial settlements, they do still occur or are ongoing for divorces or dissolutions in the past.

Generally, where the person who pays maintenance remarries, this doesn’t mean that their obligation to pay spousal maintenance to their ex-spouse stops. However, if the person in receipt of the maintenance payments remarries, the Spousal Maintenance Order automatically ends.

Altering a maintenance agreement is usually instigated by a significant change in financial circumstances for either party and they can be varied either upwards or downwards. Doing so can have a significant impact on either party – the party making the payments may have budgeted for a set amount and an uplift may leave them short, similarly, the party receiving the payments may have factored them into as a steady long-term income and may have not planned for a reduction. The legal test for whether maintenance can be reduced is whether this can be done without causing “undue hardship” to the person receiving the maintenance. It can be harder to adjust where maintenance has been paid for a very long time and where the person in receipt has relied on such maintenance as a source of income due to their inability to earn their own income.

The best course of action is for the parties to agree a variation of maintenance between themselves. However, if this does not happen, the court can decide what reduction (or increase) is appropriate. An application to vary a maintenance order can be risky for one or both parties if there is no merit to the application and therefore it is not something that should be embarked upon lightly. Once an application to vary maintenance has been made, the court is entitled to consider ordering a one-off payment to the receiving party to "buy out" their maintenance claim, as well as varying the payments up or down, or terminating the maintenance order resulting in no further payments at all. It is also important to consider the risk of there being a costs order made if an application or a response to an application is unsuccessful.

Varying a Financial Order

It is possible to make an application to vary a financial Order in circumstances where there has been material non-disclosure of financial information by one party, which would otherwise have altered the terms of the financial Order.

This is a complex area of law, and our family lawyers can discuss the issues, costs and, likely outcomes of varying a maintenance order. We can also liaise with the other party regarding full financial disclosure on both sides and/or arrange mediation if that would help an agreement to be reached.