Section 31 Matrimonial Causes Act 1973: varying a financial order after divorce
Section 31 MCA 1973 sets out which financial orders can be varied or discharged - maintenance and instalment lump sums yes, capital and property orders largely no.
Official text
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MCA 1973 s. 31 — United Kingdom
Where the court has made an order to which this section applies, then, subject to the provisions of this section and of section 28(1A) above , the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended. This section applies to the following orders, that is to say— any order for maintenance pending suit and any interim order for maintenance; any periodical payments order; any secured periodical payments order; any order made by virtue of section 23(3)(c) or 27(7)(b) above (provision for payment of a lump sum by instalments; any deferred order made by virtue of section 23(1)(c) (lump sums) which includes provision made by virtue of— section 25B(4), ... section 25C, or section 25F(2), (provision in respect of pension rights) or pension compensation rights any order for a settlement of property under section 24(1)(b) or for a variation of settlement under section 24(1)(c) or (d) above, being an order made on or after the making of a judicial separation order; any order made under section 24A(1) above for the sale of property a pension sharing order under section 24B above , or a pension compensation sharing order under section 24E above, which is made at a time before the divorce or nullity of marriage order has been made final . Where the court has made an order referred to in subsection (2)(a), (b) or (c) above, then, subject to the provisions of this section, the court shall have power to remit the payment of any arrears due under the order or of any part thereof. Where the court has made an order referred to in subsection (2)(dd)(ii) above, this section shall cease to apply to the order on the death of either of the parties to the marriage The powers exercisable by the court under this section in relation to an order shall be exercisable also in relation to any instrument executed in pursuance of the order. The court shall not exercise the powers conferred by this section in relation to an order for a settlement under section 24(1)(b) or for a variation of settlement under section 24(1)(c) or (d) above except on an application made in proceedings— for the rescission of the judicial separation order by reference to which the order was made, or for the dissolution of the marriage in question. In relation to an order which falls within paragraph (g) of subsection (2) above (“the subsection (2) order”)— the powers conferred by this section may be exercised— only on an application made before the subsection (2) order has or, but for paragraph (b) below, would have taken effect; and only if, at the time when the application is made, the divorce or nullity of marriage order has not been made final ; and an application made in accordance with paragraph (a) above prevents the subsection (2) order from taking effect before the application has been dealt with. No variation of a pension sharing order or a pension compensation sharing order, shall be made so as to take effect before the divorce or nullity of marriage order is made final . The variation of a pension sharing order or a pension compensation sharing order, prevents the order taking effect before the end of such period after the making of the variation as may be prescribed by regulations made by the Lord Chancellor. Subject to subsections (7A) to (7G) below and without prejudice to any power exercisable by virtue of subsection (2)(d), (dd) , (e) or (g) above or otherwise than by virtue of this section, no property adjustment order or pension sharing order or pension compensation sharing order shall be made on an application for the variation of a periodical payments or secured periodical payments order made (whether in favour of a party to a marriage or in favour of a child of the family) under section 23 above, and no order for the payment of a lump sum shall be made on an application for the variation of a periodical payments or secured periodical payments order in favour of a party to a marriage (whether made under section 23 or under section 27 above). Where the person liable to make payments under a secured periodical payments order has died, an application under this section relating to that order (and to any order made under section 24A(1) above which requires the proceeds of sale of property to be used for securing those payments) may be made by the person entitled to payments under the periodical payments order. or by the personal representatives of the deceased person, but no such application shall, except with the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of that person is first taken out. In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates, and— in the case of a periodical payments or secured periodical payments order made on or after the making of a divorce or nullity of marriage order, the court shall consider whether in all the circumstances and after having regard to any such change it would be appropriate to vary the order so that payments under the order are required to be made or secured only for such further period as will in the opinion of the court be sufficient (in the light of any proposed exercise by the court, where the marriage has been dissolved, of its powers under subsection (7B) below) to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments; in a case where the party against whom the order was made has died, the circumstances of the case shall also include the changed circumstances resulting from his or her death. Subsection (7B) below applies where, after the dissolution of a marriage, the court— discharges a periodical payments order or secured periodical payments order made in favour of a party to the marriage; or varies such an order so that payments under the order are required to be made or secured only for such further period as is determined by the court. The court has power, in addition to any power it has apart from this subsection, to make supplemental provision consisting of any of— an order for the payment of a lump sum in favour of a party to the marriage; one or more property adjustment orders in favour of a party to the marriage; one or more pension sharing orders; a pension compensation sharing order; a direction that the party in whose favour the original order discharged or varied was made is not entitled to make any further application for— a periodical payments or secured periodical payments order, or an extension of the period to which the original order is limited by any variation made by the court. An order for the payment of a lump sum made under subsection (7B) above may— provide for the payment of that sum by instalments of such amount as may be specified in the order; and require the payment of the instalments to be secured to the satisfaction of the court. Section 23(6) above applies where the court makes an order for the payment of a lump sum under subsection (7B) above as it applies where the court makes such an order under section 23 above. If under subsection (7B) above the court makes more than one property adjustment order in favour of the same party to the marriage, each of those orders must fall within a different paragraph of section 21(2) above. Sections 24A and 30 above apply where the court makes a property adjustment order under subsection (7B) above as they apply where it makes such an order under section 24 above. Subsections (3) to (5) of section 24B above apply in relation to a pension sharing order under subsection (7B) above as they apply in relation to a pension sharing order under that section. Subsections (3) to (10) of section 24E above apply in relation to a pension compensation sharing order under subsection (7B) above as they apply in relation to a pension compensation sharing order under that section. The personal representatives of a deceased person against whom a secured periodical payments order was made shall not be liable for having distributed any part of the estate of the deceased after the expiration of the period of six months referred to in subsection (6) above on the ground that they ought to have taken into account the possibility that the court might permit an application under this section to be made after that period by the person entitled to payments under the order; but this subsection shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this section. The following are to be left out of account when considering for the purposes of subsection (6) above when representation was first taken out— a grant limited to settled land or to trust property, any other grant that does not permit any of the estate to be distributed, a grant limited to real estate or to personal estate, unless a grant limited to the remainder of the estate has previously been made or is made at the same time, a grant, or its equivalent, made outside the United Kingdom (but see subsection (9A) below). A grant sealed under section 2 of the Colonial Probates Act 1892 counts as a grant made in the United Kingdom for the purposes of subsection (9) above, but is to be taken as dated on the date of sealing. Where the court, in exercise of its powers under this section, decides to vary or discharge a periodical payments or secured periodical payments order, then, subject to section 28(1) and (2) above, the court shall have power to direct that the variation or discharge shall not take effect until the expiration of such period as may be specified in the order. Where— a periodical payments or secured periodical payments order in favour of more than one child (“the order”) is in force; the order requires payments specified in it to be made to or for the benefit of more than one child without apportioning those payments between them; a maintenance calculation (“ the calculation ”) is made with respect to one or more, but not all, of the children with respect to whom those payments are to be made; and an application is made, before the end of the period of 6 months beginning with the date on which the calculation was made, for the variation or discharge of the order, the court may, in exercise of its powers under this section to vary or discharge the order, direct that the variation or discharge shall take effect from the date on which the calculation took effect or any later date. Where— an order (“the child order”) of a kind prescribed for the purposes of section 10(1) of the Child Support Act 1991 is affected by a maintenance calculation ; on the date on which the child order became so affected there was in force a periodical payments or secured periodical payments order (“the spousal order”) in favour of a party to a marriage having the care of the child in whose favour the child order was made; and an application is made, before the end of the period of 6 months beginning with the date on which the maintenance calculation was made, for the spousal order to be varied or discharged, the court may, in exercise of its powers under this section to vary or discharge the spousal order, direct that the variation or discharge shall take effect from the date on which the child order became so affected or any later date. For the purposes of subsection (12) above, an order is affected if it ceases to have effect or is modified by or under section 10 of the Child Support Act 1991. Subsections (11) and (12) above are without prejudice to any other power of the court to direct that the variation of discharge of an order under this section shall take effect from a date earlier than that on which the order for variation or discharge was made. The power to make regulations under subsection (4C) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. See also section 52A (interpretation of certain references to divorce orders, nullity of marriage orders and judicial separation orders).
Section 31 answers "can this order be changed", and the answer depends entirely on which order it is. Subsection (2) contains the list: maintenance pending suit and interim maintenance; periodical payments and secured periodical payments orders; an order for a lump sum payable by instalments; a deferred lump sum order containing pension provision; a settlement or variation-of-settlement order made on or after a judicial separation order; an order for sale under section 24A; and a pension sharing order made before the divorce order has been made final.
What is not on the list is as important. A plain lump sum order and a transfer of property order cannot be varied. That is the reason financial remedy practice treats the capital settlement as final and the maintenance as the flexible part, and the reason a payer who cannot afford a lump sum has an interest in it being ordered by instalments.
Subsection (7) sets the approach: the court has regard to all the circumstances, with first consideration to the welfare while a minor of any child of the family, and the circumstances include any change in the matters the court had to consider when making the original order. On a variation of periodical payments after divorce, the court must also consider whether the payments should now be limited to a further period sufficient for the recipient to adjust without undue hardship. Subsections (7A) to (7G) give the compensating powers on discharge or variation - a lump sum, property adjustment orders, a pension sharing order, and a direction barring further applications - which is how a maintenance order is capitalised into a clean break years after the divorce. Subsection (2A) allows arrears to be remitted.
When it applies
A payer whose income has fallen and who wants maintenance reduced.
A recipient asking for maintenance to be increased after a change in circumstances.
Capitalising ongoing maintenance into a single payment to achieve a clean break.
Arrears that have built up under an old order.
A party wanting to reopen a property transfer years later and finding they cannot.
What this section does not say
×It does not allow a property adjustment order to be varied. Transfers of property are not in the subsection (2) list.
×It does not allow a plain lump sum to be varied. Only a lump sum payable by instalments, and certain deferred pension-related lump sums, are within the power.
×It is not an appeal. Section 31 responds to changes and to the listed order types; challenging an order as wrongly made at the time is a different route.
×It does not vary a pension sharing order after the divorce order is final.
×It does not remove the need for a change. In practice a variation application turns on what has changed since the order was made.
Worked examples
Invented situations, written to show how the wording bites. They are not real cases, not judgments and not precedent, and nothing here predicts what would happen in yours.
Illustrative example
A payer has been meeting a maintenance order for six years. Their business has collapsed and their income has fallen sharply. The recipient says the order was final and cannot be touched.
How the wording applies
Subsection (2) contains the list of orders that can be varied, and periodical payments orders are on it, so the order is not closed. The fact that decides the application is what has changed since the order was made: subsection (7) directs the court to all the circumstances including any change in the matters it had to consider originally, with first consideration to any minor child's welfare. A drop in income has to be evidenced, not asserted.
How the parties settled it
They agree a reduced monthly figure for eighteen months on the basis of filed accounts, reverting to the original figure if turnover recovers past an agreed threshold.
Illustrative example
Years after a divorce, one party regrets the transfer of the family home to the other and wants it revisited now that property values have moved.
How the wording applies
What is not in the subsection (2) list matters as much as what is: a transfer of property order is not variable, and neither is a plain lump sum. That is why financial remedy practice treats the capital settlement as final and maintenance as the flexible part. The fact that closes this off is the type of order made, not the size of the change since - and section 31 is not an appeal against an order said to have been wrong when made.
How the parties settled it
Both accept the property order stands, and instead agree to bring the ongoing maintenance to an end by a capitalised payment so that neither has any further claim.
Illustrative example
Maintenance arrears have built up over three years under an old order while both sides argued about whether the payments were still due.
How the wording applies
Section 31 responds to changes and to the listed order types, and a variation can be made with effect from a date the court fixes, which is what brings historic arrears into scope. The fact that shapes what happens to them is why they accrued: arrears that reflect a genuine change in circumstances are treated differently from arrears that reflect a decision not to pay, and permission may be needed to enforce older ones.
How the parties settled it
They agree half the arrears are remitted in recognition of the period the payer was out of work, with the balance cleared by instalments over a year and the ongoing figure varied from the date of the agreement.
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This page reproduces the text of MCA 1973 s. 31 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.