Variation of Maintenance/Custody Order

Variation of the order of maintenance 

Many may think a divorce can settle all the matters in a marriage, but if the court issues a maintenance order and the wife/husband failed to make payment, the parties may have to meet at Court again.

There are generally two ways to recover maintenance against a spouse: applying for a judgment summons, or an attachment of income. The former allows the Court to summon the spouse and reveal his financial situation. If he cannot give a justification, the Court has the power to make a new order for payment or send the spouse to jail according to the Matrimonial Causes Rules. The Matrimonial Proceedings and Property Ordinance states that, an attachment of income can be ordered if the Court is satisfied that the payer has failed to make payment without reasonable excuse, with reasonable grounds believes the payer will not make full and punctual payment, or both parties agree to the making of this order. If any payer’s income payable is capable of being attached, the Court may order this income to be attached to the whole or part of the amount payable, and direct payment shall be made by the payer’s sources of income (usually his employer).

As the period of maintenance may last for several years, either party can apply for variation in maintenance level according to changes in financial circumstances. For example, when the payer changes job and his new salary is lower, he may apply for a reduction. To avoid legal proceedings in a long run, the parties can agree to adjust maintenance annually by a certain percentage or in line with the government’s inflation measuring index.

According to s.11(1) of the Matrimonial Proceedings and Property Ordinance, the Court has the power to vary, suspend or discharge the order of maintenance. If both or any side of the parties wishes to vary the order, he/she can apply to the Court.

The Court would take different matters into account during the process of variation to yield to a fair and reasonable outcome, including the current financial situations and income sources of the maintenance payer and the payee, children’s financial needs, and changes to any of these matters. For example, in Y v Y [2008] HKCU 552, the payer (husband) applied a downward variation in the maintenance due to his post and salaries changes and his re-marriage. After assessing his circumstances, including parent maintenance fees and other expenses, the Court held that he could still pay the original arrears. To successfully apply for a variation of the order, the applicant must prove that it is no longer appropriate for his circumstances to pay the original amount with sufficient elaboration and evidence.

It is careful to note that the payer is obliged to comply with the original order until the Court varied it. In LCK v WMDGL [2007] HKFLR 14, the payer (husband) defaulted in payment of the maintenance during his application of variation without valid reasons provided, thus he had breached the order even though his application of a downward variation succeeded in the end.

Variation of the order of custody 

According to s.19 (6) of the Matrimonial Proceedings and Property Ordinance, the Court has the power to vary or discharge the custody order made. As stipulated in s.3 of the Guardianship of Minors Ordinance, concerning the custody or upbringing of a minor, the Court would regard the best interest of the minor as the first and paramount consideration, as well as the minor’s own will and other material information such as reports from the Director of Social Welfare.

In L v S [2015] HKCU 1271, the custody holder (mother) applied to shift her son’s custody to the father based on her financial situations. Yet, the son had been taken care of by the mother since birth and had indifferent relations with the father with severe psychological distress; meanwhile, the father was busy in work, and the mother was a full-time housewife. Eventually, the Court refused the application to maximise the son’s benefits and varied the maintenance order by requesting the father provide complete financial support to the son. Therefore, the Court may consider parents’ occupations, parent-child relationship and child’s mental status in deciding the order of custody, and the order of maintenance may also be varied.

In KYW v LMS [2009] HKCU 536, the non-custody holder (father) applied for variation based on the fact that the son and the mother quarrelled frequently. The Court refused the application, considering that the father had already formed a new family and the mother was in a better place to provide more concentrated care to the son. Thus, the Court may also take parents’ current marriage status when reviewing the custody.

If necessary, you can also apply for legal aid. Ms. Ngan is a member of the Legal Aid Department Penal for Criminal, Divorce/Family Law, Employees’ Compensation, Personal Injury, Medical Negligence, and Land Disputes. If legal aid is approved, the aided person has the right to choose a lawyer to represent.

Please feel free to contact us at 69776708 for Mr Lam or make an appointment.

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