Ups and Downs: Variation of Maintenance Orders

When an ancillary relief order is made it may contain provision for one party to pay the other spousal maintenance (or “periodical payments”). This is usually for a defined amount per month or it may be expressed as a percentage of the payer’s income. The level of maintenance will be based, amongst other things, on the parties’ needs as assessed at the time the order was made and their financial resources. But what if the circumstances of the parties change after the order is made? For example, what if the payer loses his or her job? Or the payee finds that they are struggling to make ends meet?

In these situations it may be possible to seek an order from the court to vary a maintenance award. The amount can be varied (upward or downward), the term may be changed, arrears discharged, the order may be temporarily suspended or the court may exercise its power to capitalise the remaining maintenance payments. The application to vary can be made by either the payer or the payee.

Applying for Variation

In order to make an application to vary maintenance, there are various elements which need to be satisfied:

• There must be an existing maintenance order in place, even if it is only a “nominal” maintenance order.
• The payee must not have remarried because on remarriage maintenance payments end.
• The applicant must satisfy the test laid down in statute which is that the court will take into account “all the circumstances of the case…(and this) shall include any change in any of the matters to which the court was required to have regard when making the order.”

Applying the Test

As is often the case in family law, the court has wide discretion to decide when or if to allow a variation of maintenance. The first consideration will be of the welfare of any child under 18. Other relevant factors will be the relative financial resources of each party, their ages and their needs. The court will also want to know what has happened in the intervening years since the ancillary relief order was made, how things have changed and why they have changed.

The court also has a duty to consider, on an application for variation, whether or not there should now be a clean break. This could be achieved by capitalising future maintenance by the payer paying a lump sum in lieu of future maintenance payments.

Case law

Very broadly, case law has seen a general trend towards allowing variation of maintenance and allowing payees to increase the length of maintenance orders where they were made for a specific term only. The focus has shifted from the payee having to argue for any continuation of maintenance to the payer having to argue against the continuation of it.

The court may also take into account the extent to which the person reliant on the maintenance has tried to become financially independent, although this will depend on factors such as their age, resources and whether they were in a position to become independent. In the case of North v North [2007] EWCA Civ 760 the court limited a wife’s claim to increase her maintenance because she had not tried to obtain gainful employment and had frittered away her money on a serious of unwise business decisions and a lavish lifestyle since the divorce. Nevertheless, the court still awarded her an increase of maintenance because it said that she could not be blamed for the businesses she invested in going bust.

Latest Cases

This year, two cases in particular considered the matter of variation of maintenance. Both were cases where the applicants were trying to increase the amount they received. In McFarlane v McFarlane [2009] EWHC 891 the applicant was successful in arguing that she should receive an increase in her maintenance payments. Mr McFarlane’s income had steadily increased and Mrs McFarlane said she needed more money to meet her own and the children’s needs. Her maintenance was increased based on a percentage of the husband’s income rather than on the basis of a defined amount per annum but the court limited the maintenance to 2015 which is when the husband is due to retire. The court left it open to Mrs McFarlane to apply again in 2015 if she is still not financially independent. Critics might argue that this leaves little incentive to people like Mrs McFarlane to become financially independent when she has the option of seeking further resources from Mr McFarlane. The case is somewhat unusual in that Mr McFarlane was, and is, extremely wealthy and so there was a surplus of income available to be shared between the parties. It was also relevant that Mr McFarlane had remarried and his second wife was also a high earner contributing towards the household and therefore there was more “surplus” to be divided.

Another recent case on variation this year was Hovorostovsky v Hovorostovsky [2009] EWCA Civ 79. In this case, the payer’s income increased dramatically while the payee was accepted to be without an earning capacity and a lifelong dependent of her former husband. An increase of the level of periodical payments was ordered by the court. However, the court did not accept that the payee who was the former wife in this case, needed to be compensated for having given up her career as a dancer prior to her marriage to her husband in 1989. In contrast, in the case of Mrs McFarlane, above the court held she did deserve to be compensated for giving up her high flying career as a solicitor to look after the family when she got married.

Alternative Options

Applying to court for a variation of maintenance obviously has a cost element attached to it and this needs to be balanced against the prospects of being successful in any application. It is important to take advice on this aspect.

An alternative option to litigation might be to try mediation through a family lawyer or to try negotiation through solicitors.

If there are children involved, it is important to remember that spousal maintenance is separate from and usually additional to child maintenance, which all non-resident parents are obliged to provide. More information on child maintenance can be found at www.childmaintenanceoptions.com and at www.csa.gov.uk. Also where children are involved, it may be possible to pursue a claim for a lump sum, property or periodical payments under the Children Act which does not require there to be a maintenance order or even that the parties were ever married.

If you would like any more information on variation of maintenance please contact Paven Basuita or any member of Osbornes family department.

Michael Jackson’s mum ‘wins custody’ of kids

news source: Mirror.co.uk

Michael Jackson’s mother Katherine Jackson and the singer’s ex-wife Debbie Rowe have reached an out-of-court agreement over custody rights for the late star’s children.

According to US news reports, the arrangement gives Katherine Jackson full, permanent custody of the King of Pop’s three children, while Rowe will be granted “meaningful visitation rights”.

Speaking to the NBC’s The Early Show, a lawyer for Katherine said: “It’s an agreement, an agreement for the best interests of the children. This is not a money deal.

“All of the parties are resolved. There is no situation better for these children than for them to be raised and reared in the loving care of Mrs Katherine Jackson.”

Rowe, who was married to Jackson from 1996 until 1999, is the mother of Prince Michael, 12, and Paris Katherine, 11, while 7-year-old Blanket was born via an anonymous surrogate.

She signed away her parental rights to her two kids in 2001, describing Jackson as a “wonderful man… a brilliant father.”

However, a Los Angeles judge reversed the order in 2004 after Rowe cited concerns over publicity related to Jackson’s prosecution for child molestation. Rowe later settled the case, reportedly securing visitation rights.

On June 29, a Los Angeles court named Katherine Jackson as the temporary guardian of the three children.

Micheal Jackson’s Children Prince Michael,Paris Michael & Prince Michael II

MJ with his Kids

They are rarely seen in public, and when they are, it is usually with their faces are usually obscured. It is doubt over who is their biological father is, these are just some of the obstructions facing Michael Jackson’s children.
Michael Joseph Jackson Jr., known as Prince Michael, 12; Paris Michael Katherine Jackson, 11; and Prince Michael II (more commonly known as Blanket), 7, Who will take their custody and being them to adulthood?

Michael Joseph Jackson Jr., known as Prince Michael, 12; Paris Michael Katherine Jackson, 11; and Prince Michael II (more commonly known as Blanket), 7

Michael Jackson has been the only parent these children have known, and now he’s gone, so despite rumours the King of Pop’s mother, Katherine Jackson, will care for the three children, and Jacksons Manager Frank DiLeo’s comments “The kids are very upset, but they are fine,” Michael Jackson’s kids face a very uncertain future.

One likely claimant will be Debbie Rowe, Jackson’s second wife and the biological mother of Prince Michael and Paris but what about Blanket he was born of an unidentified surrogate mother in Europe.

Mark Lester, the former child star and godfather to Michael Jackson’s three children, said he would be there for the children “24/7″. “They’re the most fabulous kids and I will do anything. I’m here for them 24/7, so whatever they need, they’ve got from me.

“Michael was one of the best. He made me ashamed, he was such a good father,” he said.

A Jackson family lawyer has suggested the late singer’s mother could look after her grandchildren. According to Brian Oxman, a Jackson family lawyer, the three children are likely to be looked after by Katherine Jackson. “Probably Mrs Jackson will take care of them, she loves them dearly,”

Jackson's Children

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

So far we have seen 3 major people who have come forward  to take custody of the children. It is yet not officially announced or been told that who will be given the authority to take custody of    Michael Joseph Jackson Jr., known as Prince Michael, 12; Paris Michael Katherine Jackson, 11; and Prince Michael II (more commonly known as Blanket), 7.

Michael Jackson: British godfather vows to be there for star’s children

Michael Jackson's three children in a Los Angeles comic book store before his death

Mark Lester, the former child star and godfather to Michael Jackson’s three children, said he would be there for the children “24/7″.

“We are deeply shocked. Michael Jackson was one of the nicest, sweetest people that you could ever meet and the whole family is absolutely devastated.”

Mr Lester, 50, from Cheltenham, Gloucestershire, has not yet been told who would care for the children but said he will be “there for them”.

“They’re the most fabulous kids and I will do anything. I’m here for them 24/7, so whatever they need, they’ve got from me.

“Michael was one of the best. He made me ashamed, he was such a good father,” he said.

Mr Lester was made godfather to Michael’s three children – Princes Michael 1 and 11 and Paris, while the singer was godfather to Mark’s children Lucy, 17, Harriet, 15, Olivia, 14 and Felix, 10, in a Las Vegas ceremony six years ago.

Mr Lester’s wife Lisa, 37, said she and her family had spent many weekends with Jackson and added that her husband was “heartbroken” by the star’s death.

“We all are,” she added.

“I just think the world has lost an amazing man. It was a privilege to be able to spend time with him,” she said.

Micheal Jackson Kids!

Mark’s oldest daughter Lucy, 17, said: “I first met him when I was 12 about five years ago. Whenever I saw him he would give me a hug and ask me how school or work were going. He would come and sit down and watch TV with us – he was just normal in every way.”

Michael Jackson’s mum and ex-wife in bitter fight for children

Michael Jackson’s mum is looking after his 3 children just now, but the star’s ex-wife Debbie Rowe is set to go to court in a bitter battle to win custody of Prince Michael Jnr and Paris

Whilst Michael Jackson’s mum Katherine looks after Prince Michael Jnr, 12, Paris, 11, and seven-year-old Prince Michael II, it looks like the Jackson family are going to have a fight on their hands to retain custody of the children.

As The Sun newspaper reported, Jackson family lawyer Brian Oxman said Katherine would probably care for them long-term. He said: “She loves them dearly.”

But a friend of Michael’s  ex-wife Debbie Rowe, mother of the two oldest children, has revealed Debbie  wanted full custody of the youngsters, two days before Michael’s death.

The Sun reported that the friend said: “Debbie threw a fit, saying she was sick of the way Michael was bringing the children up.

“She said she was going to go for full custody of them. She said she was quite prepared to go all the way and fight him in court for it.”

However the Jackson family are adamant the children should stay with them and are prepared to fight for them.
It has been claimed that Debbie Rowe signed away her parental rights in return for a house and a multi-million dollar lump sum.

Debbie is said to be concerned that Michael’s mother is nearly 80 and she doesn’t awnt her children losing their father and grandmother.

She was also said to be furious when the kids were photographed recently without their usual face coverings.
It seems a long custody battle is likely to ensue.

Michael Jackson’s mother to care for his children, lawyer says!

News Source : The Guardian

The custody arrangements for Michael Jackson’s three children following his death are unclear, but a Jackson family lawyer has suggested the late singer’s mother could look after her grandchildren.

Jackson had two children – Prince Michael Jr and Paris Michael Katherine – with his former nurse, Debbie Rowe, whom he married in 1996. After they divorced, in 1999, Rowe waived her parental rights and Jackson took sole responsibility for the children’s upbringing.

He had a third child, Prince Michael II, with a mystery surrogate mother whom he never met. In 2002, Jackson caused an outcry by dangling the baby – referred to as “Blanket” – over a third-floor hotel balcony in front of the world’s press. He later said he regretted the incident.

As well as naming the children after himself, Jackson took an unusual approach to shielding them from the media by covering their faces.

According to Brian Oxman, a Jackson family lawyer, the three children are likely to be looked after by Katherine Jackson. “Probably Mrs Jackson will take care of them, she loves them dearly,” Oxman told the celebrity website Radaronline.

According to court documents posted on the TMZ website (pdf), Rowe understood she would have no rights over her two children in the event of Jackson’s death. Asked what she would do if he died, she replied: “I’m sure … he has a wonderful person in mind to take care of them.”

Gloria Allred, the lawyer who complained to California’s child protective services after watching Martin Bashir’s 2003 documentary Living With Michael Jackson, told CNN she was “very concerned” about Jackson’s children. “What will happen to them?” she said. “If the mother relinquished parental rights then who’s to have custody?”

Jackson’s three children are unlikely to be the only young people to find themselves caught in the media spotlight after the singer’s death. Jordan Chandler and Gavin Arvizo were the two boys who separately alleged they had been sexually abused by Jackson.

In 1993, Jordan, then 13, hit the headlines when he claimed he had been molested by the singer, who was reported to have struck up a friendship with him. Jordan’s father filed a civil lawsuit against Jackson, who denied the allegations, saying: “There have been many disgusting statements made recently concerning allegations of improper conduct on my part. These statements about me are totally false.”

He agreed to settle the case out of court. Estimates of the undisclosed settlement range from $2m (£1.1m) to $50m.

A decade later Jackson told Bashir that he sometimes slept in the same bed as other people’s children, adding: “It’s very loving. What’s wrong with sharing a love?” The documentary caused outrage and nine months later more than 70 officers arrived at Jackson’s Neverland ranch to look for evidence that he had sex with Gavin, a 13-year-old boy with cancer whose treatment Jackson had paid for.

In December 2003 it emerged that Jackson had been charged with seven counts of child molestation and two of administering an intoxicating alcohol to a child for the purpose of committing a felony. The following February Jackson pleaded not guilty at a trial in which the witnesses included Macaulay Culkin, Jay Leno and Chris Tucker.

Jurors heard that Gavin claimed Jackson had given him and his younger brother wine – which he said the singer called “Jesus juice” – and had made sexual advances. Jackson’s lawyers argued that Gavin wanted revenge after the singer had grown away from him. In June 2005, Jackson was cleared of all charges.

The two men, now 29 and 19, have yet to speak publicly about Jackson’s death, but media organisations are known to be trying to track them