Alteration of maintenance agreements - MCA 1973 s. 35
Court can vary or insert financial arrangements in maintenance agreements if circumstances change; payments limited to death/remarriage - MCA 1973 s. 35
Where a maintenance agreement is for the time being subsisting and each of the parties to the agreement is for the time being either domiciled or resident in England and Wales, then ... either party may apply to the court ... for an order under this section. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . If the court ... is satisfied either— that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made or, as the case may be, financial arrangements were omitted from it (including a change foreseen by the parties when making the agreement), the agreement should be altered so as to make different, or, as the case may be, so as to contain, financial arrangements, or that the agreement does not contain proper financial arrangements with respect to any child of the family, then subject to subsections (4) and (5) below, the court may by order make such alterations in the agreement— by varying or revoking any financial arrangements contained in it, or by inserting in it financial arrangements for the benefit of one of the parties to the agreement or of a child of the family, as may appear to the court to be just having regard to all the circumstances, including, if relevant, the matters mentioned in section 25(4) above; and the agreement shall have effect thereafter as if any alteration made by the order had been made by agreement between the parties and for valuable consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Where the court decides to alter, by order under this section, an agreement by inserting provision for the making or securing by one of the parties to the agreement of periodical payments for the maintenance of the other party or by increasing the rate of the periodical payments which the agreement provides shall be made by one of the parties for the maintenance of the other, the term for which the payments or, as the case may be, the additional payments attributable to the increase are to be made under the agreement as altered by the order shall be such term as the court may specify, subject to the following limits, that is to say— where the payments will not be secured, the term shall be so defined as not to extend beyond the death of either of the parties to the agreement or the remarriage of , or formation of a civil partnership by, the party to whom the payments are to be made; where the payments will be secured, the term shall be so defined as not to extend beyond the death or remarriage of , or formation of a civil partnership by, that party. Where the court decides to alter, by order under this section, an agreement by inserting provision for the making or securing by one of the parties to the agreement of periodical payments for the maintenance of a child of the family or by increasing the rate of the periodical payments which the agreement provides shall be made or secured by one of the parties for the maintenance of such a child, then, in deciding the term for which under the agreement as altered by the order the payments, or as the case may be, the additional payments attributable to the increase are to be made or secured for the benefit of the child, the court shall apply the provisions of section 29(2) and (3) above as to age limits as if the order in question were a periodical payments or secured periodical payments order in favour of the child. For the avoidance of doubt it is hereby declared that nothing in this section or in section 34 above affects any power of a court before which any proceedings between the parties to a maintenance agreement are brought under any other enactment (including a provision of this Act) to make an order containing financial arrangements or any right of either party to apply for such an order in such proceedings.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section lets a court change a maintenance agreement (a written deal about money between former spouses or civil partners) while both parties are still alive. The court can only act if one party applies, both are domiciled or resident in England and Wales, and either the circumstances that shaped the original financial terms have changed (even if the change was foreseen) or the agreement fails to provide properly for a child of the family.
The court can vary or cancel existing financial arrangements, or add new ones. If it inserts or increases unsecured periodic payments for the other party, those payments must stop when either party dies or the recipient remarries or forms a civil partnership. For secured payments, they end on the recipient's death, remarriage, or civil partnership. For periodic payments to a child, the court applies the same age limits that apply to court-ordered child maintenance under section 29(2) and (3).
A maintenance agreement altered by the court then has effect as if the parties had agreed the changes themselves. This section does not affect the court's power to make financial orders under other laws (including other parts of this Act) in proceedings between the same parties.
When it applies
- A divorced couple signed a maintenance agreement for spousal support. The paying spouse loses their job and applies to court to reduce the monthly payments.
- After separation, a couple agreed on financial arrangements but made no provision for their child. The parent with primary care asks the court to insert child maintenance into the agreement.
- A maintenance agreement includes unsecured periodic payments to the ex-wife. She remarries, and the ex-husband wants the court to stop the payments because the term cannot extend beyond remarriage.
- A couple agreed on secured spousal maintenance. The recipient forms a civil partnership, and the paying party seeks a court order to discharge the payments.
What this section does not say
- Altering a final court order for financial provision – use section 31 (variation of orders).
- Altering a maintenance agreement after one party has died – covered by section 36.
- Challenging a consent order made by the court – dealt with under section 33A.
Related sections
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This page reproduces the text of MCA 1973 s. 35 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.