Fifty Shades Darker
Early this year, my colleague, Emma Palmer, wrote “Fifty Shades of Grey” reviewing the complex area of spousal maintenance in light of the recent case of SS-v-NS (Spousal maintenance)  EWHC 4183.
Those who have read the EL James books, may see the analogy in the way the tale of Anastasia Steele's life with Christian Grey in the first novel moves seamlessly to the second, so the saga of spousal maintenance takes another step forward with a widely reported land mark case heard just last week.
Tracey Wright recently made the national headlines having been told by Lord Justice Pitchford in the Court of Appeal to “get a job” and that her husband was not obliged to support her for life.
It is worth bearing in mind Mr and Mrs Wright were an exceptionally wealthy couple. Mr Wright worked as a racehorse surgeon, and was ordered to pay Mrs Wright the fairly eye watering sum of £75,000 per year (which included school fees). Mr Wright sought to bring the payments to an end on the basis that he was planning to retire within 5 years. The Court of Appeal agreed.
So, what does this mean for divorcing couples up and down the country?
Most readers will be familiar with the obligation when couples separate, to pay child maintenance. In the event of a disagreement, the court has relatively limited scope to be involved with the amounts payable and, in most cases, the question is resolved by reference to the Child Maintenance Service (as the Child Support Agency is now known). CMS apply a formula to the income of the payer to calculate the amount due based on gross income and time spent with the children amongst other factors.
Less well known is that the Family Court has the power to order spousal maintenance. This is a payment for the ex-spouse, as distinct from the children of the family. Unlike the CMS calculation, it is not calculated in accordance with a percentage formula. It is instead based upon an assessment of both parties’ income, outgoings, their needs, the ability to pay and what is deemed to be reasonable.
It is common for arguments to occur around one of both parties inflating their expenses to affect the likely payment of spousal maintenance. In addition there are challenges made about one or both manipulating their true receipt of income or failing to maximise their earnings.
The assessment is further complicated by the need to decide how long should maintenance payments be made for. For life, or until the recipient remarries, or a fixed period? If fixed, for how long? Should the fixed period be extendable, or not?
There is always scope for the payment to be varied (as Mr Wright sought ), so one party can seek to have the payment increased, while the other can seek to have the payment decreased, or brought to an end altogether. A change of circumstances will need to be demonstrated, which involves a re-examination of the facts and figures .
Finally, the law directs that one party’s ongoing obligations to the other are brought to an end as soon as possible, unless the receiving party cannot adjust to a cessation without undue hardship. This cessation is known as a “clean break”.
Clearly, the overwhelming majority of couples do not have the sort of income available to Mr and Mrs Wright. Mrs Wright was judged to have made no effort to find work or train to carry out work, so the court imposed a finite period of payment to force her to obtain her own means of supporting herself.
In that respect, nothing has changed. The court has already been required to have regard to an individual’s ability to earn, as well as what they actually earn. This can be a particularly problematic aspect when there are minor children to care for but in our evolving world there is an increasing expectation that both parents should be active in meeting the financial needs of the children. This latest case sends out a clear message that those that can work, and choose not to, do so at their peril, where their former spouse pursues a reduction or end to payments of spousal support.
You can also find out more information on the family pages of our website on all of these options. The family team at Whitehead Monckton have a wealth of experience providing guidance and advice in all areas relating to separation or divorce. If you wish to discuss any of the points raised in this article, please contact a member of the Family team.