In certain circumstances court decrees which have been granted in family law matters can be varied upon the application of either party to the Court. Decrees of residence (custody), contact (access) and aliment are capable of variation.
Where the decree is for aliment for a spouse, this can be varied on application of either party upon a material change of circumstances. It is difficult to define exactly what a material change in circumstances is. It is not a minor change in your finances such as a small wage variation either upwards or downwards. But unemployment or a real fall in your income would constitute a material change. In times of inflation the diminution of the value of the award over time could also be cited as a variation. Similarly, where aliment was paid to a spouse who subsequently obtained employment, this could be considered as a material change in circumstances.
The change need not be of a directly financial nature. It could be a variation in your family arrangements such as a new baby. Where for instance you were paying aliment to your estranged spouse and you established a new relationship that may constitute a material change in your circumstances where your new family required your financial support.
A material change in circumstances is therefore one which has a noticeable and real effect on your finances. The Court would however be unlikely to be sympathetic where one party relied upon debts incurred after the decree was granted. The Court may consider that your first responsibility was to ensure that adequate resources were available to meet the obligation of aliment in the first place.
Both parties can rely upon the Court’s willingness to consider changing circumstances. It would therefore be open to an estranged spouse, who was reliant on aliment, to seek an increase based on the other spouse’s improved financial circumstances.
For further information on varying a family law decree under Scots law, please contact our family law experts on 0141 404 1091 or fill out our online enquiry form.
Applications for a variation in a residence or contact order are not uncommon. They can be granted where there is a material change in circumstances and the change in care arrangements can be shown to be in the best interests of the child.
An example of change in circumstances is where the parent with care wishes to move abroad and it is not in the interests of the children that they go (typically the children are settled in school or have an extended family around them etc). A change in circumstances is not by itself sufficient to persuade the court to change care arrangements. The applicant must also show that the proposed change in care arrangements would be in the best interests of the child. It should also not be assumed that one parent moving from the local area constitutes a change of circumstances. Families move all the time to find work and the court recognises this. It would also be possible to show to the court that emigration was in the best interests of the children where the opportunities for the family (and thus the child) were improved by the move.
The procedure for applying for a variation of decree is relatively straightforward and cost effective. The application is made to the Court that originally granted the decree. The application takes the form of a simple minute which narrates the changed circumstances and asks the court to consider varying the original award. The respondent is allowed to reply to this application by submitting his answers to the minute in which he counters the application either in part or in whole. A failure to respond to the application may result in the court making the variation as requested. The Court is also able to make an interim variation based upon the parties written submissions and the lodging of any supporting documentation. Otherwise a hearing on evidence is arranged. Where one party believes the other is withholding documentation or other evidence, the Court can make an order for disclosure.
Where an application for a variation is successful, expenses can be ordered in favour of the winning party. There is no limit on the number of applications for variation of Court decrees that can be made.
To contact us for an appointment please call or e-mail our family lawyer Colette Kerr on 0141 404 1091 or [email protected]. For general queries surrounding any family law matter please fill out our online enquiry form.