Although certainty in Divorce Law is a desirable attribute nevertheless The Divorce Act 1986 authorizes courts to vary spousal support terms either on an initial application for support under s. 15.2 Divorce Act, or on an application to vary an existing court order under s. 17 Divorce Act.
S.17(a) Divorce Act 1985 states “A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
- (a) a support order or any provision thereof on application by either or both former spouses”
The section allows for the varying, rescinding or suspending of existing support orders. In order to make a successful application however it must be shown that a material change in condition, means, needs or other circumstances of the parties and/or the child(ren) has occurred. Under the law however this change in condition, means, needs and other circumstances is required to be ‘material’ and not trivial. This is known as the ‘material change threshold’. The onus of proving that a material change has occurred is upon the applicant and the standard of proof is the balance of probabilities. (Willick v. Willick). Additionally, as the wording of the act suggests, the variation of the support order can be made with retroactive effect, which is to say that support payment can be claimed for a period of time which has already passed.
The courts in assessing whether the ‘Material Change threshold” for changing a support order has been crossed by either of the spouses take into consideration the following factors;
- The changes must be such that they were not known to by the parties and Judge at the time of the initial order: if such a factor would have been known at that time the original order would have catered to it.
- The change could not have reasonably been foreseen by the parties or the Judge at the time of the original order.
- The change must be one which has a measure of continuity and not short lived and transitory
- The question of ‘change’ is subjective, relative and varies from situation to situation based upon the circumstances of the case
- The original support agreement (if any) and/or order may be referred to in order to determine whether the change was ‘known’ and ‘foreseen’ or not.
Additionally, the courts have proven to overlook a persons deliberate change of circumstances by applying assets in a way which results in diminished income and increased expenses and not constituting a material change. (P. (W.C) v. P. (C.) )
Keeping in mind the abovementioned factors, it is asserted that determining whether a material change has occurred or not is a complex matter and the services of a qualified, competent and reputable Family Law or Divorce Law Lawyer is advised.
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