(1)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, subject to [F1subsections (1A) and (3)] below, either party may apply to the court or to a magistrates’ court for an order under this section.
[F2(1A)If an application or part of an application relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011—
(a)the requirement as to domicile or residence in subsection (1) does not apply to the application or that part of it, but
(b)the court may not entertain the application or that part of it unless it has jurisdiction to do so by virtue of that Regulation and that Schedule.]
(2)If the court to which the application is made is satisfied either—
(a)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
(b)that the agreement does not contain proper financial arrangements with respect to any child of the family,
then subject to subsections (3), (4) and (5) below, that court may by order make such alterations in the agreement—
(i)by varying or revoking any financial arrangements contained in it, or
(ii)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 that court to be just having regard to all the circumstances, including, if relevant, the matters mentioned in [F3section 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.
(3)A magistrates’ court shall not entertain an application under subsection (1) above unless both the parties to the agreement are resident in England and Wales and [F4[F5the court acts in, or is authorised by the Lord Chancellor to act for, a local justice area in which at least one of the parties is resident];] and shall not have power to make any order on such an application except—
(a)in a case where the agreement includes no provision for periodical payments by either of the parties, an order inserting provision for the making by one of the parties of periodical payments for the maintenance of the other party or for the maintenance of any child of the family;
(b)in a case where the agreement includes provision for the making by one of the parties of periodical payments, an order increasing or reducing the rate of, or terminating, any of those payments.
(4)Where a 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—
(a)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 [F6, or formation of a civil partnership by,] the party to whom the payments are to be made;
(b)where the payments will be secured, the term shall be so defined as not to extend beyond the death or remarriage of [F6, or formation of a civil partnership by,] that party.
(5)Where a 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.
(6)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.
Textual Amendments
F1Words in s. 35(1) substituted (18.6.2011) by The Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (S.I. 2011/1484), reg. 1(1), Sch. 7 para. 6(3)(a)
F2S. 35(1A) inserted (18.6.2011) by The Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (S.I. 2011/1484), reg. 1(1), Sch. 7 para. 6(3)(b)
F3Words substituted by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), ss. 46(1), 48(3), Sch. 1 para. 13(a)
F4Words substituted by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), ss. 46(1), 48(3), Sch. 1 para. 13(b)
F5Words in s. 35(3) substituted (1.4.2005) by Courts Act 2003 (c. 39), ss. 109(1), 110, Sch. 8 para. 169; S.I. 2005/910, art. 3(y)(bb)
F6Words in s. 35(4)(a)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(1), 263, Sch. 27 para. 44; S.I. 2005/3175, art. 2(2) (subject to art. 2(3)-(5))