In recent months, the British media has focused extensively on the current cost of living crisis. The rise in living costs has been exacerbated by a multitude of factors, including inflation that is outstripping wages, rampant energy costs, and rising fuel and food prices. According to the latest data, inflation in the UK is now at 7%, the highest rate in the last three decades. It is also expected that food prices will rise by 15% this year alone. The end result is that an increasing number of people in the UK are financially stretched to the limit and unable to meet their financial commitments, including those made following divorce or dissolution. In this article, we will take a look at whether it is possible to change financial arrangements with an ex-partner due to a lack of affordability.

What is a consent order?

Following divorce or dissolution, parties who are unable to reach a mutual agreement on financial matters may seek a financial remedy through the courts. A consent order (also referred to as a financial settlement or financial order) details financial arrangements between separated couples and is approved and issued by the court. Consent orders can be used to define how finances, property (e.g. sale or transfer of property), and pensions are to be handled after separation, in accordance with the Matrimonial Causes Act 1973 (MCA 1973). Financial provision in consent orders can be dealt with by way of periodic payment, secured periodical payment, and lump sum orders.

Can I apply to vary or set aside a consent order?

It is possible to apply for a variation (i.e. make a change to) of several different types of financial order, including (but not limited to):

• Maintenance pending suits
• Periodical payments and secured periodical payments
• Lump sums by instalments
• Periodical payments or secured periodical payments (subject to the provisions of the Child Support Act 1991)
• Payment of a lump sum by instalments
• Deferred lump sums.
• Settlement orders – including orders for:

o  the settlement of property for the benefit of a spouse or children of the family

o  varying a settlement for the benefit of a spouse or children of the family



• Sale of property
• Pension sharing

It is important to note that certain financial orders cannot be varied. With few exceptions, only income orders can be changed; capital orders are considered final and, hence cannot be changed. Additionally, orders for lump-sum payments that are not made periodically, property adjustment orders, and pension sharing orders once a conditional matrimonial order has been finalised cannot be varied.

What will the court consider when an application to vary a consent order is made?

Courts have broad discretion when considering applications to vary a consent order. They will take into consideration a range of factors, including:

• the welfare of any children - this is of paramount concern to the court
• any change in circumstances - this normally needs to be significant for the court to agree to an order variation
• the specific evidence presented with the application
• whether a “clean break” is warranted
• fairness
• financial circumstances of both parties – courts will consider the reduced income of one party, the increased income of the other, and any increase or decrease in responsibilities.
• the balance of responsibilities between first and subsequent families
• , any incidents of financial mismanagement

For an application to vary a consent order to be successful, it is essential to present a clear case with strong supporting evidence. It is important to understand that the court will not simply reduce periodical payments made by one party to another just because, for example, the payer has lost their job. In such scenarios, it is more likely the court will order a temporary reduction or cessation of payments while the payer secures new employment and order an increase in payments once they have done so.

The court’s approach to financial order variation during the COVID-19 pandemic

Like the current cost of living crisis, the COVID-19 negatively impacted household finances, with many people losing their jobs or having to adjust to lower “furloughed” pay during 2020 and 2021. Indeed, recent case law shows us that unless a very strong case is made to vary a consent order, refusal is likely. In the case of AJC v PJP [2021], EWFC B25, an application to increase periodical payments upwards was rejected. Likewise, in the case of FRB v DCA (No. 3) [2020] EWHC 3696 (Fam), an application to vary or set aside a lump sum payment order by instalments was also rejected.

Final words

It is entirely understandable that individuals subject to a consent order who have been adversely affected by the cost of living crisis may wish to apply to the courts to have the order changed to reflect their situation. Courts have a duty to weigh up the circumstances of both parties (and their children) to a consent order and also consider why the original order was reached. If one party applies for a variation on the basis that their costs have increased, it is also likely that the other party also has increased costs. For this reason, only in the most extreme cases is it likely that a court will agree to vary an order, and where they do, it may only be temporary.

For a free consultation regarding varying a consent order, please call our understanding and caring family law team on 0208 300 6666.