The court has the power to vary the maintenance sum for the wife but there must be a material change in the circumstances which justifies the need for the court to order for a change in the maintenance sum.
You should seek the advice of an experienced divorce lawyer if you are thinking about applying to vary the maintenance amount.
What can I (husband) prove to show material change?
Loss of employment
If you are retrenched or you lost your job, this is a clear case of a material change in the circumstances affecting your ability to pay maintenance to your wife.
In such a case, the courts would likely order for a downward variation or a suspension of the maintenance order.
However, if your loss of employment is due to a personal choice being made by you to be unemployed, the court would likely not allow you to rely on it as a reason to not pay maintenance.
Note that if your loss of employment occurred before the start of negotiations for the maintenance amount, you would likely not be able to rely on it as a reason to vary the maintenance sum.
Bankruptcy or Failure of Business
Bankruptcy or failure of your business would be taken as major events that are likely to be material adverse changes, affecting your ability to pay maintenance to your wife.
In most cases, there would be a downward variation of the maintenance sum instead of a complete waiver of the maintenance as the husband would likely be required by the court to still contribute for food and household provisions.
Decrease in Salary
If you suffer from a decrease in salary to an extent that it affects your ability to pay maintenance to your wife, the court may order a downward variation of the maintenance sum.
However, the decrease in salary must be significant in order for the change to be considered as material.
You would have to prove to the court that you are suffering some hardship or financial difficulty as a result of the decrease in salary before the court would be satisfied.
Note that the decrease in salary must not be self-induced or brought about for the purpose of evading maintenance payments.
The courts would carefully scrutinise your claims to prevent this from happening.
Decrease in wife’s cost of living
If your wife experiences a decrease in her cost of living, be it from relocation to a country with a lower cost of living or that she has the ability to pay for her expenses with a job now, this is a ground available for you to apply for an order of the court to reduce the maintenance sum.
The aim of the court in ordering maintenance is to ensure that there are no financial inequalities between the parties.
Thus, so long as you are able to prove that your wife does not require the originally ordered sum of maintenance, the courts would likely order for a downward variation.
If your wife receives a substantial sum of inheritance, this can constitute as a material change in circumstances that may result in the court ordering a downward variation.
The court would take into account factors such as
- The current maintenance sum received
- The inheritance sum
- The age of your wife
- The employment of your wife
In determining if the inheritance received is a sufficient ground for a variation order to be made.
Remarriage or Cohabitation
If your wife remarries, spousal maintenance automatically stops.
If you remarry and experience an increase in expenses, resulting in your inability to pay maintenance, whether this suffices as a ground for the court to order a variation would depend very much on the facts of your case.
If you remarry, you are expected to be aware of your financial obligations to your ex-wife. At the same time, the court would not want the maintenance order to shackle around your life. This is a balancing act that the court would have to grapple with in every of such cases.
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