Following on from my two popular blogs on spousal maintenance, I thought it would be helpful to provide an update as to where we are now given some time has passed since they were written.
Well, not an awful lot has changed following the guidance produced by the Law Commission’s recommendations made within the Matrimonial Property, Needs and Agreements project and the significant case of SS v NS 2014 so I thought it might be useful to highlight a few cases, both from before my blog posts were written and since, which underpin the basis of my original blog ‘Spousal Maintenance – what is it? why do I have to pay it? how much and for how long?’.
As outlined in my earlier blogs, spousal maintenance is based on the first approach of the payee’s ‘needs’ and the payer’s ‘ability’ to pay. Sounds simple but you won’t be surprised to know that this subject provides for some fairly heated debates not just between couples themselves but within the legal profession too. From experience I have seen disparities and inconsistencies throughout the UK – in other words there appears to be differences of opinions depending on where you live, which court your case is being heard in and of course which Judge hears it. Helpful eh?! This was picked up in the Law Commissions report, who sought to set out some guidelines to provide a more consistent approach being taken throughout England and Wales.
So let’s look at some key spousal maintenance cases:
The court will look to establish whether the party to be receiving the spousal maintenance would be able to adjust ‘without undue hardship’ to financial independence if they were not in receipt of spousal maintenance.
The key question here is whether the receiving party can adjust not should he/she adjust. In answering that question the court will pay attention not only to the duration of the marriage but to the effect the marriage and its breakdown and the need to care for any minor children has had and will continue to have on the earning capacity of the receiving party and the extent to which he/she is no longer in the position he/she would have been in but for the marriage, its consequences and its breakdown.
It is highly relevant to consider the ability of the receiving party of entering or re-entering the labour market, resuming a career and making up any lost ground.
It is not appropriate simply to say ‘this is a short marriage, therefore a term must be imposed’. The court has to form an opinion not only that the payee will adjust but also that the payee will have adjusted within the term that is fixed. Where there is doubt about when self sufficiency will be attained the proper course is to impose no term but to leave the payers to seek a variation later on.
A young spouse at the end of a short marriage, even with young children, would normally be expected to take proper steps to make him or herself financially independent to a significant extent within a reasonable time so that by the time the children were adult the requirements for support would have at least diminished if not wholly disappeared.
‘Without undue hardship’ is a question that must be approached on evidence, not hope or indeed crystal ball gazing – the receiving party will need to provide evidence of his or her earning potential.
What is to be avoided is not all hardship but undue hardship and what amounts to undue hardship is a matter for each individual Judge.
The provision awarded as spousal maintenance should enable a gentle transition for the party who made the domestic contribution from the standard of living enjoyed during the marriage to the standard that they could expect as a self sufficient person and the length of the marriage and the role of a spouse as the primary caretaker of the children of the marriage would be factors to be taken into account in determining the amount of the provision to meet that transition.
Having children may indeed change everything. A person cannot however see their ex spouse as a ‘meal ticket for life’. The economic impact of having children has to be considered.
Under S25A of the Matrimonial Cases Act 1989 the court has a duty to consider whether a clean break would be appropriate to bring the parties’ financial responsibility towards each other to an end.
The Family Justice Council Guidance for the Judiciary on Financial Needs on Divorce sets out a checklist of factors when considering making a ‘joint lives’ or ‘term order’ as follows:-
One Judge in a case has been famously quoted as stating that wives with children aged seven or older should ‘just get on with it’ and go back to work like many other women with children. This led to a flurry of enquires from a number of ex-husbands asking whether they could stop paying their former wives maintenance and force them back to work instead. However, each case is fact specific and it is not simply that a wife with children aged seven or over must go back to work and have no entitlement to spousal maintenance. What the case law does make clear though is that a spouse cannot expect their maintenance to last forever or even until the children reach adulthood.
Case law states that a fair result is not one which seeks to achieve a dependence for life (or until re-marriage) for the payee spouse to fund a lifestyle equivalent to that enjoyed during the marriage but one that recognises that the aim is independence and self sufficiency based on all the financial resources that are available to the parties.
From that it follows that generally, the marital partnership does not survive as a basis for the sharing of future resources but…
There is no fixed formula for this. The individual needs of the parties concerned have to be analysed in each case.
The principle of allowing a former spouse to stockpile for the future is a well-recognised devise for achieving fairness as between the parties. The primary carer of the children may after marriage have many years of intensive child-rearing in front of them and they are entitled to find that contribution reflected in the award which the court makes.
It is clear that ‘stockpiling’ will only be applied in cases in which the facts warrant it.
Well, we have some very helpful guidance from the Family Justice Council and from Mr Justice Mostyn in NS v SS [2014]. However, what I anticipate is that we will continue to have further debates about what ‘undue hardship’ actually means on a case by case basis; what will be considered a ‘short marriage’ and therefore what adjustment is required to take this into account; and critically how we assess and analyse ‘needs’ again on a case by case basis.
I was married for just over 2 years have one child Andy this is what happened.
I have to pay ?1350 pm for 16 years got no equity in the house and my name has to stay on the morgage but I am not entitled to any equity when the house is sold.
Legal system gone wrong?
I was married for just over 2 years have one child Andy this is what happened.
I have to pay ?1350 pm for 16 years got no equity in the house and my name has to stay on the morgage but I am not entitled to any equity when the house is sold.
Legal system gone wrong?
I am looking for a variation asap
hi dear
I have a question. were the husbands legally obliged to provide the necessities for his wife? if she does not work out side the home but maintain the house and cooking…..
Dear Fatemeh, thank you for your comment. As you will have read in the article any claim for spousal maintenance is based on the recipient’s ‘needs’ and the payer’s ability to pay. It is very case specific and therefore I would recommend you obtain advice from a Resolution lawyer to discussion your specific circumstances.