Spousal maintenance cases – where are we now?

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:

What happens if the marriage is a short one? (the case of C v C [1997])

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.

What happens in relation to short marriages with young spouses? (the case of M v L [2003])

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.

What is undue hardship (the cases of SS v NS [2014] , H v H [2007])

‘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.

Does having children change everything? (the case of Murphy v Murphy [2014])

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.

Should spousal maintenance be paid for the joint lives of the parties or for a fixed term? (the cases of Wright v Wright [2015], SS v NS [2014])

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:-

• Age
• Health and mobility
• Relevant qualifications
• Previous work experience
• Length of time since last employment
• The opportunity to brush up, acquire skills or retrain
• Costs and availability of retraining
• Availability of work
• Child care commitments and daily routine
• Age, health and any particular needs of a child, children or other dependants
• Childcare options and cost
• Realistic level of net remunerations
• Availability of work related state benefits
• Net financial gain after paying childcare and work related expenses
• The extent to which there has been pension-sharing to take account of future needs
• Compatibility of working with caring for any children
• Attributing an average earning capacity in view of the length of the marriage and the ex spouse’s net remuneration and ability to pay.

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.

How does the court assess the amount to be paid? (in the case of G v G [2012])

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…

• the lifestyle enjoyed during the marriage sets a level that is relevant to the independent lifestyles to be enjoyed by the parties;
• the length of the marriage is relevant to determining the period for which that level of lifestyle is to be enjoyed by the payee or if there is a return to a lesser standard of living the period over which that transition should take place;
• if the marriage is short this supports the conclusion that the award should be directed to providing a transition over an appropriate period for the payee spouse to either a lower long term standard of living than that enjoyed during the marriage or to one that is not contributed to by the other spouse;
• the marriage may have generated needs or disadvantages in attaining and funding self sufficiency;
• the most common source of a continuing relationships generated need or disadvantage is the both of children and their care;
• the choices made by the parties as to the care of their children are an important factor in determining how that care should be provided.

How are needs worked out? (the case of Mills v Mills [2017])

There is no fixed formula for this. The individual needs of the parties concerned have to be analysed in each case.

Is it reasonable for one party to be able to ‘stockpile’? (the case of AB v FC [2016])

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.

Where are we now?

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.