11. Can an order for maintenance pending suit be varied?

11. Can an order for maintenance pending suit be varied?

The court has wide power to vary, discharge, suspend or revive an order for maintenance pending suit (“MPS”).  

An applicant will usually need to show a material change in circumstances since the original order was made. If the applicant fails to do so, the variation application will be dismissed.  If the applicant is able to show a material change in circumstances, the court will then look at the matter afresh rather than just adjusting the original figure.  

Relevant matters may include changes in income, needs, liabilities, assets, health expenses, or the payer’s ability to pay. The court will consider all the circumstances and will balance the recipient’s reasonable needs against the payer’s financial capacity, using the marital standard of living as a general reference point. 

Variation may be granted if there are urgent requirements, such as immediate health needs or critical financial shifts that cannot wait several months for the final trial. 

A variation application must not be used as a “back-door appeal” and generally speaking, a variation should not be taken out within 6 months after the order is made. If the complaint is simply that the original judge reached the wrong decision on the evidence then available, the proper route is an appeal. Variation is appropriate only where later developments make the existing order unfair or inappropriate.   

In variation applications, the court also adopts a broad-brush approach, avoiding excessive financial detail because of the temporary nature of MPS. It will also be slow to disturb a consent order unless there has been a substantial and unforeseen change making it unjust to hold the parties to the agreement. 

Procedurally, the application is usually made by summons, supported by affidavit/affirmation evidence setting out the applicant’s current finances, the grounds for variation, and the changes since the original order. The court may also backdate a variation, including to a date before the application was filed, if justice requires.