When a court order is made by the court, it is legally binding upon both parties to the order. Both parties must therefore follow the terms of the order. However, the court has the power to vary, discharge, suspend or revive a range of orders, whether the order is made by consent or otherwise.
In terms of financial orders, these include:
- Interim maintenance
- Periodical payments (spousal maintenance)
- Payment of lump sums by instalments
- Settlement of property
- Pension attachment order
- Order for the sale of property
- Pension sharing order (made before the final divorce order)
It is important to note that besides the limited examples above, the court cannot vary capital orders.
An order for maintenance is always variable.
A party may seek an order for the spousal maintenance payments to stop, or an order reducing/increasing spousal maintenance payments, or extending/ reducing the length of time spousal maintenance is paid. The Court must also have the option of capitalising the spousal maintenance payments to bring the payments to an end. If such applications are made, the court will list the matter for a hearing and consider whether there have been material changes to the parties’ financial position, meaning the income position should be varied. This could result in several hearings before a final decision is made. The court has broad discretion and must have regard to all of the circumstances of the case and consider if the party in whose favour the order was made, can adjust without undue hardship upon the termination of those payments.
Changes can occur over time with a Child Arrangements order, which sets out contact arrangements for children to see their parents if separated. Over time, the arrangements may no longer work due to the child ageing (the order may have been made when the child was very young) or family commitments changing, making the arrangements no longer viable.
What are some of the options if you want a court order changed without going to court?
There are options available to parties if they wish for their court order to be changed.
Agreement – if you reach an agreement with the other party to the order, you can both make an application to the court with a consent agreement. The consent agreement will record the changes by consent of both parties. The court will consider the changes and whether they are appropriate and decide whether to approve the changes.
No Agreement – one party may seek a change to the order, but the other party may not agree. In this scenario, either party could invite the other to attend Mediation to discuss and try to agree to any changes. A Mediator is a third independent party who will help facilitate discussions between you to reach an agreement.
If no agreement can be reached, then the party who requests the changes can apply to the court to vary the existing court order.
What risks are associated with changing a court order without formal court approval?
There are always risks when making any application to the court. The court’s primary concern will always be the welfare of any children. The court will need to consider the changes being requested and the updated positions of the parties with specific evidence. After the court has completed its investigations, and in the absence of an agreement, the court will make a final decision.
