Spousal maintenance – where are we now?
  • 8th Aug 2014

How much spousal maintenance should be paid and for how long is often a point of contention between a separated couple.  Many people say the law as it presently stands in relation to spousal maintenance is too vague and needs reforming. It certainly makes clarity inaccessible to those without representation and creates uncertainty for the future.

So what exactly is spousal maintenance and what sort of Orders are commonly made in relation to duration?

Spousal maintenance.  This is maintenance payable by one spouse or former spouse to the otherin their own right and in addition to any maintenance payable for the benefit of children.

Term Maintenance Order.  This is spousal maintenance paid for a defined term which, for example, could be 1 year, 5 years, until a child has reached the age of 18, or some other event.  The term can be ordered to be extendable or non-extendable.

Joint Lives Maintenance Order.  Maintenance will continue until either party dies, the receiving party remarries, or the Court makes a different order

There is no automatic entitlement to spousal maintenance for either party. The court is required to consider in every case, whether it can achieve a clean break between the parties so that the financial obligations of each party towards the other come to an end.

So how might this be applied?

There is great variation of approach to spousal maintenance, in part on account of there being no formula, other than an assessment of needs, plus there is the exercise of judicial discretion in the circumstances of each particular case. 

When the Matrimonial Causes Act 1973, which provides for maintenance, came into force, the clean break concept did not exist.  It was only by a later amendment that a formal duty was imposed on the Court to consider a clean break and the dismissal of spousal maintenance.  Initially there was a marked reluctance in the Court imposing a clean break.   

Then in the case of Fleming-v-Fleming, late 2003, the Court of Appeal found that a term order which had not included a bar on extending the term, could be terminated provided the wife was financially solvent when the case was reconsidered. In this case she was cohabiting and working by the time the case came back to Court.

Move forward a few years, the recession hit and families were struggling more financially. L-v-L in 2011 resulted in a joint lives maintenance order being reduced to a lesser figure and payable for a shorter term and with an absolute bar on the wife applying to extend that on appeal. The original Judge had ordered joint lives maintenance. Then A-v-L also from 2011 where on appeal a term order and a delayed order for sale of the matrimonial home was overturned and the appeal judge ordered an immediate sale and capitalised spousal maintenance to achieve a clean break.

This was followed in 2012 by the case of Yates-v-Yates where the Wife applied back to Court to extend, increase and then capitalise her spousal maintenance from the original divorce order. The lump sum awarded by the District Judge at first hearing was reduced by the Court of Appeal who cited the case of Fleming as good reason for being cautious and not overly awarding.

So, where are we now?

The 2014 case of Murphy comes as a surprise putting joint lives maintenance very much back on the table. This was not a long marriage, the parties had separated after an 8 year relationship. The Wife had cared for their children full time for the past 3 years but wanted to return to employment as and when she could juggle employment with child care. Prior to having the children, she was earning £30,000 per year. The parties were able to agree capital division but could not agree on whether there should be a step down in the financial provision to be paid to the Wife nor whether the spousal maintenance payable should at some point terminate.  These remaining issues were looked at by the Court and we see a move away from the clean break trend.

In this case the Court said it would be entirely speculative to estimate a date by which the Wife would be able to obtain employment in the future and the Court would not therefore order a step down in the spousal maintenance the husband was to pay. The Court also would not agree to limit the duration of the payments. Her earning capacity now she had the children to care for was entirely uncertain.

For those who are reading this and may find themselves in a position where they are going to have to pay ongoing spousal maintenance then this may seem like a very harsh position indeed but, if one looks at the wording taken from the judgement set out below, then it makes harsh but good sense:

I do not know, nor do the parties know, what the future will bring. It may be that this wife will find another partner with whom she chooses to share her life and the maintenance will all end. It may be that she will be able later, if not sooner, to obtain well remunerated employment, carrying with it a good pension, and any dependence will end. But at the moment this lady is in a precarious position. She is very largely dependent on her husband, and it is frankly impossible for me to form the opinion that section 25A (2) requires as the trigger to then making a term order.”

What is clear moving forward is that joint lives maintenance may be considered more and a clean break less than before in some cases.  The maintenance payer will usually prefer a clean break but may not get it if there is uncertainty over the recipient’s future income.  To assess what position you are in if you are facing separation or have recently separated, you should seek independent advice from a qualified and experienced family law practitioner.

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.