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Maintenance: terms and conditions

We often talk about spousal maintenance, perhaps more correctly we should talk about former-spousal maintenance or ex-spousal maintenance. But it is not often that lawyers stop to ask themselves why spousal maintenance is paid at all. Why, after the dissolution of a marriage, does the law permit, and indeed order, one spouse financially to maintain the other? Well, it is an effect of the common law duty imposed upon spouses to support each other whilst the marriage subsists.

That duty continues after separation as a result of statute. Even before judicial divorce first became law in this country (in 1857), in the era when a divorce could only be obtained by a private Act of Parliament, the terms of such an Act would invariably require that the husband was to make some moderate financial provision for his former wife. Subsequent matrimonial legislation has established the principle of maintenance payments after divorce.

These days maintenance can be payable for a fixed term (which may be extendable or non-extendable), or for life, or even extending beyond the death of the payer if that maintenance has been secured. You can also have a nominal order, which is where nothing substantive is paid, but there is no clean break, leaving the door open for claims to be made later on.

There is no automatic entitlement to spousal maintenance on divorce, but legislation obliges the court to consider whether it is possible to achieve a clean break between the parties, or whether the needs of one party (usually the income-poorer one, often the one who has the children with them more of the time) require that maintenance should be paid to top up income from other sources to meet needs.

Spousal maintenance is dealt with differently in different countries. In places like Scotland, Sweden and New Zealand legislation provides that the obligation to maintain a spouse should not be imposed save for a short period. In Scotland it is three years. We wrote last week about Baroness Deech’s Bill which would create a similar limit in England and Wales if it were to be passed (which is unlikely, particularly bearing in mind the upcoming general election).

Our current legislation requires that maintenance ends as soon as it is just and reasonable, and a term order (i.e. one of fixed duration) should be considered by the court, unless the receiving party would be unable to adjust without undue hardship to the ending of the payments.

The amount of maintenance paid is calculated based on financial needs. Recent cases have also discussed needs being generated by the fact of the marriage (or the slightly unattractive phrase “relationship generated disadvantage”). Assuming the choices made by the spouses during their marriage give rise to quantifiable financial needs the next question arising is for how long should it be paid?

There is no hard and fast answer, and the general lack of clarity around this is one of the things being addressed by the Matrimonial Needs Working Group which was established following a recommendation by the Law Commission that the law relating to financial needs on divorce be clarified. The group’s report is due soon, and we will look at it in this blog when it is out.

As for how long maintenance should be paid, the Law Commission wrote that the objective of maintenance orders is to enable a transition to independence, to the extent that it is reasonable bearing in mind the length of the marriage, standard of living, the need to house the parties, and the continued shared responsibilities relating to children.

In a recent case one of our more prominent family judges, Mr Justice Mostyn, has decided to grab the general vagueness around the subject of maintenance – how much and for how long and provide some guiding principles. His words are not law, and because his decision was in the High Court rather than the Court of Appeal or the Supreme Court, it is not binding on other High Court cases. However, his pulling together of what are considered the key principles is quite useful. In summary he says:

  • Maintenance should be paid if choices the couple made when married have generated real needs. The length of the marriage and presence of children are key factors – a short and childless marriage may not therefore give rise to any maintenance.
  • Maintenance should only be calculated by reference to needs, apart from in the most exceptional cases. The standard of living during the marriage is relevant but not decisive when assessing quantum of maintenance.
  • Courts must consider an end date (a term) for the maintenance, and helping a party make the transition to financial independence. It is acceptable for there to be a degree of hardship when making that transition.
  • A term which can be extended if necessary is better than a joint lives (i.e. until one party dies) order.
  • If a court has to decide between imposing a term which can be extended, and one which cannot, its decision should be in favour of the economically weaker party (i.e. extendable terms).

What he seems to be saying here is that he wants to see the back of never ending (joint lives) orders, and rather giving more certainty through fixed term maintenance orders allowing the parties time to adjust to their new circumstances and become financially independent of each other. He is not a supporter of Baroness Deech’s three year limit, but does seem to want to inject his own brand of clarity into family law.

We will wait to see what the working group has to say on the matter. In the meantime, if you have any maintenance questions, or any other family law matters you would like to discuss, you can reach us on 01223 443333 to make an appointment.

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