Amendment Of Child Maintenance After Divorce

Published date19 October 2022
Subject MatterFamily and Matrimonial, Family Law, Divorce
Law FirmKevin Wu & Associates
AuthorKevin Wu & Associates

Once a divorce has been finalised, an order pertaining to child maintenance that was mutually consented or made by the Court can be amended by either parent, at any stage.

We live in a time where an unprecedented and unfortunate pandemic has impacted businesses and their employees. If you have personally suffered from major financial setbacks due to the outbreak of Covid-19 and you continue to bear the expenses of paying child maintenance every month, or on the other hand, if you are the custodial parent who requires additional pecuniary assistance for your children, what can you do?

A possible solution is to make an application for Variation of Maintenance Order

SITUATIONS THAT JUSTIFY THE VARIATION OF A CHILD MAINTENANCE ORDER:

Firstly, the principles guiding a Court in deciding whether to vary a maintenance order is essentially the same as when the Court decides on a fresh maintenance application. The Court has a wide discretion to consider all the circumstances of a case1 and consider the reasonableness of the claims. The difference now is that the Court will investigate the applicant's new circumstances and compare it with the applicant's circumstances when the original maintenance order was made.

Secondly, the evidential burden lies on the applicant to satisfy the Court on a balance of probabilities and thus, the individual making the application to vary the maintenance order must ascertain that there is a material change of circumstances that warrants a change and present the necessary evidence (e.g.: documentary evidence, bank statements, pay slips, etc) before the Court exercises its discretion.

Moving on, this article will highlight two potential grounds that could warrant the variation of a maintenance order.

  1. Material changes in circumstances
  2. Reasonable and in interest of the children's welfare

a. Material changes in circumstances

The party making application to vary child maintenance order must prove to the Court that there is material change in circumstances such as changes in earning capacity. An example of such material changes in circumstances include, when the person who contributes to the child's maintenance is faced with reduction or loss of income. On the other hand, if the person who contributes to the child's maintenance has sufficiently better earning capacity in terms of job promotion, business expansion and or any other facts, this may be deemed as a material change in circumstances.

For example, if the father who is the sole...

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