Summon for Variation

VARIATION OF COURT ORDER – CHANGING TERMS OF A COURT ORDER AFTER DIVORCE

You wish to revise or change certain terms in the existing court order to reflect new developments in your life after divorce. This can be done by way of an application by summons to vary a court order. Typically, clients seek to change the terms in their existing court order in these scenarios: –

• the financial needs of the children or yourself have increased over the years and you hope your ex-spouse can pay more;
• the paying spouse lost his/her permanent job and can no longer afford to pay for the existing maintenance, and so he/she hopes to pay less maintenance;
• there are changes to the children’s living arrangements and children visitation schedule;
• your ex-spouse remarried and the step-parent may affect the welfare of your children who are now living with them, etc.

Changes to Financial Obligations after Divorce

Section 72 of the Women’s Charter provides that an Order for maintenance may be rescinded or varied in the following circumstances :-

• proof of a change in the circumstances of that person, or that person’s wife, incapacitated husband or child; or
• for other good cause.

The court will also take into consideration any change in the general cost of living.

Changes to Children’s issues after Divorce

Section 128 of the Women’s Charter provides that an Order pertaining to custody, care and control of the children may be rescinded or varied: –

• on proof that the order obtained was based on any misrepresentation; or
• mistake of fact; or
• material change in the circumstances.

In all cases, the court retains discretion to make orders on custody, care and control of the children in view of what is in the best interests of the child.

Changes to Assets after Divorce

Section 112(4) of the Women’s Charter provides that the court may vary any order relating to the division of matrimonial assets and exercise its discretion where the order might be unworkable ab initio (i.e. from the start) or unworkable as a result of new circumstances (AYM v AYL [2013] 1 SLR 924). The court exercises its discretion under this broadly-worded provision in accordance with the following principles:

(a) Once an Order of Court has been fully implemented, the court generally does not have power to revisit or re-open the order, save where there is fraud;

(b) The court will vary an order for the division of matrimonial assets where the order is unworkable ab initio or has become unworkable as a result of new circumstances; and

(c) An order might be unworkable ab initio due to a lack of functionality of the order, or as a result of a fundamental misunderstanding at the time the order was made.

When to apply for variation?

You may wish to discuss the possibility of varying your existing court order if you find yourself in the following situations:

• You are starting to face practical difficulty in financially supporting your growing child several years after a divorce and you hope your ex-spouse can provide more monies;
• You have been retrenched or struck with illnesses and cannot keep up with the payment of your child’s maintenance;
• Your ex-spouse may have remarried and you think that you are in a better position to provide better for your child’s welfare rather than a step-parent; or
• You found out several years that your ex-spouse lied to the courts on his/her other properties and you wish to change the court order to divide that hidden property.

There may be other circumstances which you may wish to discuss with your family lawyer.

Duration

While uncontested summons for variation takes about four (4) months to negotiate a settlement and complete, contested variation proceedings takes between six (6) to nine (9) to complete.

It is prudent to apply to lower or increase the maintenance for the child or spouse as soon as material changes happen after divorce. However, this may not work all the time especially when ex-spouse has moved on with their lives or both of you have already ceased contact with each other. For paying ex-spouses, rather than waiting for the ex-spouse to commence enforcement proceedings or committal proceedings against you for non-payment or breach of court order which is costly and may attract other financial penalties, you may wish to discuss your legal options to start the variation/recission proceedings to protect yourself against other unnecessary legal battles with an ex-spouse. For receiving ex-spouse who receives spousal maintenance and child maintenance, it is crucial that you make timely application for variation to receive appropriate amount of maintenance that you and your child needs.

Yeo & Associates LLC Family Lawyers have handled different types of Summons hearing based on our clients’ scenarios. Talk to us now at 62203400 to discuss your options.