DP is a high earner. He has a maintenance order for 'joint lives' which means that his ex wife receives 50% of his salary (incl bonuses) and all employers 'spousal benefits' (health and life insurance) under the terms of the agreement.
His ex is now in a relationship with a very wealthy man and he has moved in to her home (has been living there since summer 13). DP thinks she may be pregnant (I also think this is possible).
He has been told in the past that there are two ways to amend the settlement: 1) if his ex remarries 2) he can pay a lump sum (the amount defined by an actuary) to make a clean break
His ex has said that she will never remarry. We cannot afford the clean break option.
What are our options? Since the settlement was agreed (9 years ago) DPs salary has more than doubled. We are well off and this is definitely a first world problem, we want the best thing for the children but we also want a date where we will be free of this obligation - is that too much to hope for?
Yes, he should definitely apply for a variation. It sounds as though it's a global maintenance order, ie it includes child and spousal mtce. So it would be better for him to crystallise the child maintenance aspect, and to request that the spousal element is varied to a nominal order or possibly a clean break.
The grounds for the application are that circumstances have changed and the agreement is no longer applicable.
Thank you. I have 2 further questions: 1) if she turns out not to be pregnant can we apply for a variation based on cohabiting? 2) we have been told to leave well alone as chances are order could be varied up as well as down and that court cost will be huge - is this fair (it was not legal advice)
I'm not a solicitor and there is no substitute for independent legal advice. It is possible to apply for a variation based on cohabiting, although cohabitation can be difficult to prove if it's denied. If there is a baby its 's easier to prove cohabitation and the relationship is settled. If the relationship is settled it's more likely the court will grant a clean break.
The outcome of a variation application to decrease or end spouse maintenance can indeed be an increase. However that is extremely unlikely if the new partner is a high earner. The legal costs of going to court aren't insignificant, but that could act as a deterrent so that a variation is agreed out of court or early on in proceedings. My understanding is each party paying their own costs is the starting point for variations.