Varying periodical payments and the section 28(1A) bar

When making spousal maintenance orders, the court is under an obligation to consider whether the payments should be made only while the payee adjusts, without undue hardship, to the termination of their financial dependence on the payer under section 25A(2), Matrimonial Causes Act 1973.

Periodical payment orders, also known as spousal maintenance,  often commence from the date of a financial remedy order, although can be backdated to the date of application to the court. Spousal maintenance may be fixed for a set term, e.g. 5 years, or payments may continue until they are stopped by a trigger event, such as the death of either party or the remarriage of the receiving party. It is possible for the receiving party to apply to the court and ask that the payment term is extended.

Alternatively, the maintenance may be extendable or non-extendable. Where the term is not extendable, it means that the court has the power to order that the receiving party cannot apply to extend the term of the order under section 31 of the 1973 Act. Periodical payments that are not extendable in this way are known as being subject to a “section 28(1A) bar”. Where there is no section 28(1A) bar, the court will need to find an ‘’exceptional justification’’ for the term to be extended.

Arrangements relating to periodical payments can be very complex, as there is a degree of attempting to forecast the financial position of the parties in the future. It is imperative that consideration is given as to whether a section 28(1A) bar is imposed on the receiving party, before any final order is made.

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