The recent case of T v R (Maintenance after re-marriage – agreement) (2016) EWFC 26 has considered whether a husband has the right to apply to vary a maintenance agreement contained within an order, in which he agreed to pay his ex-wife maintenance beyond what the law would require him to do i.e. after her re-marriage.

The law clearly states that the term of any spousal maintenance order cannot extend beyond the re-marriage or civil partnership of the receiving party (Section 28(1)(a) Matrimonial Causes Act 1973).

However, in this case, the parties had agreed to a consent order which provided that the spousal maintenance terminated automatically upon the wife’s remarriage (as required by law) BUT they had also accompanied this with a recital that the husband agreed to continue paying the wife maintenance following her re-marriage on a joint lives basis. The only exception to this was if the wife’s maintenance claims had been capitalised prior to re-marriage.

The wife did re-marry in December 2001 and the husband continued paying the maintenance until September 2015 when he stopped paying. The wife threatened enforcement proceedings and the husband responded by making applications to vary a) the maintenance order (under s31 Matrimonial Causes Act 1973) and b) the maintenance agreement (under s35 Matrimonial Causes Act 1973).

The wife applied to strike out the husband’s applications to vary, arguing that a) there was no power to vary the maintenance order under s31 Matrimonial Causes Act 1973 as it had come to an end by her re-marriage and b) that the maintenance agreement was one which could not be varied under s35 Matrimonial Causes Act 1973 as it was a contract for payment and did not meet the requirements of s34 Matrimonial Causes Act 1973 i.e. an agreement in writing.

This matter was heard before District Judge Parker who accepted that the husband did not have the power to vary the maintenance order, but took the view that the husband did have the power to vary the maintenance agreement, which was reduced to writing and capable of variation, even if it had at first been negotiated orally outside of court.

Applying the authority set out in Wyatt v Vince (2015) UKSC 14 on striking out claims pursuant to Rule 4.4 of the Family Procedure Rules 2010, District Judge Parker dismissed the wife’s applications to strike out the husband’s application to vary the maintenance order, finding that it was not an abuse of process and that the husband had reasonable grounds for bringing the application, but did not rule as to the prospects of success of the husband’s application.

The case has been reserved to District Judge Parker who will now consider the merits of the husband’s variation application.

This ruling makes it clear that a maintenance agreement contained within a recital to a consent order is variable. Those entering into such agreements, whether they go beyond their legal obligations or otherwise, should ensure that they take careful advice about the consequences of such an agreement.

In this case, the wife says she did not capitalise her maintenance claims upon reliance of that agreement, believing that the husband would continue to pay the maintenance as agreed following her re-marriage. Had this agreement not been in place she says she would have applied to capitalise her maintenance claims on a joint lives basis. Conversely, the husband says that he has financial obligations towards his present wife which he is struggling to meet as a result of the maintenance agreement, and that his ex-wife and her husband are financially secure and it would, therefore, be unfair for the maintenance agreement to continue in circumstances where the law would otherwise not require this. These arguments go to the merits of the variation application, and it remains to be seen what District Judge Parker will decide when hearing the substantive application.