Spousal Maintenance – Where are we now?

by Paul Summerbell, 

6th March 2015

Much has been said about a recent decision of Lord Justice Pitchford which was reported in the Telegraph newspaper under the heading of “Divorced wife told to get a job and stop living off her ex-husband”. The article in the Telegraph newspaper went on to comment that this signalled an end to leisurely living on behalf of ex-partners. It is said that Lord Justice Pitchford commented that divorcees with children aged over 7 should work.

Many commentators have referred to this case and some have even suggested that there was some misplaced excitement about this “landmark case”. It is true to say that this case is not a judgment rather it was a refusal for permission to appeal. For my part, I agree with this assertion. However, the comments made in this case, when combined with a decision in SS v NS (2014) in respect of spousal maintenance, lead to the general conclusion that there has been a change of attitude towards spousal maintenance. It could be argued that spousal maintenance should now only be applied to alleviate significant hardship with reference to need, except in exceptional circumstances with a view to the transition to financial independence with consideration (often overlooked) of the ability of the paying party to meet such payments. In so doing, a degree of hardship is acceptable in achieving independence with the termination of such payments.

In short, there are principles to be applied to any application for spousal maintenance and the decision in this case shows the following principles should be applied in any application for spousal maintenance.

1. Spousal maintenance is properly awarded where the evidence shows that choices made during the marriage have generated hard future needs on the part of the person claiming spousal maintenance (a person staying at home to look after children may lose a career).
2. An award of spousal maintenance should only be made by reference to the needs of the person claiming spousal maintenance (perhaps to retrain).
3. Any award of spousal maintenance should generally be aimed at alleviating hardship.
4. The Court must consider a termination of spousal maintenance with a transition to financial independence as soon as possible (perhaps maintenance for a fixed period only).
5. The choice between extendable term and a joint lives order of spousal maintenance is finally balanced but the Court should favour an extendable term (definitive period of time).
6. The standard of living enjoyed during the marriage is not decisive and should be weighed carefully against the objective of financial independence.
7. It is the Court’s task to examine the global request for a spousal maintenance application and ask itself if it represents a fair proportion of the paying party’s available income (ability to pay).
8. Where the person making any maintenance payments has their income made up of base salary and a discretionary bonus, any claim for spousal maintenance should also be divided between a percentage of basic salary and discretionary bonus.
9. In any application for spousal maintenance which involves a variation of the original Order (going back to Court), the Court should look at the original Order and the assumptions underpinning that Order especially where it was said in the original Order that it was difficult to predict the time of eventual financial independence.
10. If the choices are between an extendable term spousal maintenance order and a non-extendable term (fixed period) is finally balanced, the decision should normally be in favour of the financially weaker party.

Conclusion

It is clear from the decision in this case that there has been a general change of attitude and some may say a hardening of attitude towards spousal maintenance. This case demonstrates that spousal maintenance should now only be applied to alleviate significant hardship with specific reference to the need of the person making the application except in exceptional circumstances with a view to obtaining a transition to financial independence of the person applying for spousal maintenance combined with consideration being given to the ability of the person making the spousal maintenance payments to meet those payments. In so doing, the Court accepts that there is a degree of hardship that will be suffered in achieving financial independence with a view to termination of any spousal maintenance payment at a time when it is just and reasonable to do so.

Paul Summerbell
Warren’s Law & Advocacy

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