It is not uncommon for there to arise a dispute about spousal maintenance when couples attempt to resolve financial issues on divorce. In a Judgment in the case of SS v NS 2014 EWHC4183 (fam) Mostyn J gave a comprehensive guide as to the principle issues that surround spouse maintenance and whether the same should be granted. Having considered the relevant case law and the views of the law commission Mostyn J gathered together 11 principles in respect of spousal maintenance.
The first issue to consider is why spousal maintenance should arise. In the case of Millar and Millar, McFarlan and McFarlan 2006 UK HL24, the most common rational is to meet the needs which the relationship has generated. This means career break for women who focused on childhood can be taken into consideration as a relevant factor.
However, Mostyn J has formed the view that it may not be reasonable that an ex-husband should have to pay spousal maintenance by way of reference to matters which are not causally connected to the marriage unless they were looked at in a wider economic context, in other words why should a husband meet his former wife’s needs rather than the tax payer. Mostyn J has formed the view that spouse maintenance should be made to alleviate significant hardships in the first instance.
Furthermore, an award should only be made with reference to a wife or a husband’s needs, save in an exceptional case where sharing or compensation would apply. Further, where the needs in questions are not causally connected the award should be generally aimed at alleviated significant hardship.
On the fourth point Mostyn J took the view “in every case the Court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable. The terms should be considered unless the payee would be unable to adjust without undue hardship to the ending of payments. A degree of not undue hardship in making the transition to independence is acceptable”.
On the fifth matter, Mostyn J stated that the choice between an extendable term and a joint lives order is a fine balanced consideration and that the steer of the Court should militate in favour of the former, i.e. extendable as opposed to joint lives.
On the sixth point, marital standards of living is relevant to quantifying spouse maintenance but is not decisive. The standard of living should be taken into consideration when made against the desired outcome for independence.
On the seventh point, in quantifying maintenance, the Judge was not to examine the individual items in a persons budget but to stand back and look at the global total and consider whether it represents a fair proportion of the payers available income.
The eighth point dealt with bonuses where the payers income comprised of both basic salary and bonus payments. The payments for maintenance may be partitioned with needs being met from the basic salary and additional discretionary items being met from the bonus on a capped or percentage basis.
The ninth point dealt with application to extend term maintenance orders and suggested that there is no criteria of exceptionality to justify the extension of the term Order. An examination should be carried out to ascertain on an application to extend whether the premise of the original order, i.e. the ability of the payee to choose independence has been impossible to choose and if so why.
Similarly, the tenth point related to application to discharge a joint lives order and examination should be made of the original assumption that it was too difficult to predict eventual independence.
Finally, with reference to the last point, Mostyn J stated that a choice between extendable and non-extendable terms if finely balanced the decision should normally be in favour of the economically weaker party.
In summary therefore it would seem that spousal periodical payments order should generally be assessed by reference to the needs and marks a move towards the increased use of term orders for spouse maintenance rather than joint lives order.
If you require legal advice please contact our Kerry Davies, Family Law Solicitor 01524 39760 or 0800 919 231
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