Variation of maintenance – the scope of the court’s discretionary exercise

A number of previous cases have been used in support of the assertion that the court in considering an application for variation of spousal periodical payments must consider the case de novo and reapply the s. 25 criteria from scratch. In Flavell v Flavell [1997] 1 FLR 353 Ward LJ held that “the court is not required to proceed from the starting point of the original order but looks at the matter de novo”. This has long been relied upon as justification for the argument that it is not necessary, per se, to show a change of circumstances in order to justify an application for variation, though such a change is an important and relevant circumstance of any such case.

In the recent case of Morris v Morris [2016] EWCA Civ 812, however, the Court of Appeal has made it clear that this assumption is not always applicable. The case concerned an application for variation of maintenance issued a mere 6 months after the original order, where the court at first instance had made a slight variation of maintenance (reducing the payments from ￡2,000 per month to ￡1,750). The case had a long history in which the husband had failed to pay maintenance and mortgage arrears and was the subject of a judgment summons application and committal order which was also the subject of the appeal.

The husband argued that the judge on the variation application, who had also heard the original claim, had failed to consider the level of payments from scratch but had simply credited the husband with the benefit of a change in the wife’s circumstances (her slightly increased income). He said that the judge’s approach was “light touch, in the extreme” and failed to either analyse the relevant criteria sufficiently or consider the possibility of a clean break. The judge had also, he said, failed to take into account changes in the husband’s circumstances, though on examination of the order they did not appear to have any significant impact on his own income. The wife, however, argued that the court was not required to undertake a full review of the section 25 criteria given the short time between the first order and the variation application.

The court concluded that there was in fact no requirement on the court to consider the matter de novo. The judgment in Flavell had to be seen in the context of the submission in that case that the applicant had to show exceptional circumstances or at least a material change of circumstances in order to make the application in the first place. In essence a party is not required to show that there has been a change of circumstances before an application can succeed.

Moylan J observed, however, that this was not the same as saying that the court was required to consider every case from first principles. Indeed in Flavell Ward LJ approved the approach of Cazalet J in Garner v Garner [1992] 1 FLR 573 when he held that almost invariably such an application will involve a change of circumstances, otherwise it would in effect be an appeal in all but name and that if an order has not been appealed it is assumed to be correct and that therefore there will usually be no justification for varying it without a change of circumstances. Support was also garnered from the approach of Ormrod LJ in Lewis v Lewis [1977] 1 WLR 409 and of the Supreme Court in Wyatt v Vince (Nos 1 and 2) [2015] UKSC 14 when considering the duty of the court to apply the overriding objective.

He held that given the short time between the original order and the application for variation the husband would have to show more significant changes than had in fact occurred in this case. The court was entitled to take a light touch where it was self-evident that little had changed in the very short time since the order. Plainly to do otherwise would be effectively to allow the applicant to appeal out of time an order which was perfectly valid when made or to simply incur costs for the respondent unnecessarily. This would seem to be a sensible approach to the case management of applications to vary, which will assist respondents where (as is often the case) the application is more a response to dissatisfaction with the original order than any real change in need.

Rupert Chapman