Automatic increase in maintenance – yes or no
There are often cases where there is a periodical spousal order in favour of the one party, often the wife for a period of time, depending on needs and requirements. Normally these payments are ordered to be ended or reduced upon particular triggering events such as re-marriage, death, youngest child reaching a particular age.
In the recent case of Aburn v Aburn, the Court of Appeal dealt with the case of an order unusually providing for an automatic increase of periodical payment (maintenance) against the husband, the husband appealed and won.
The facts of the case were that the husband and wife had been married for 20 years. They had two children aged 14 and 19 years. The younger child was still in private education paid for by the husband. The husband was a GP and the wife had not worked but was a home maker since the birth of the eldest child. The Judge ordered the husband to provide maintenance of £1000 per month to the wife until one of the following events occurred:-
- Death of either party
- Wife’s re-marriage, or
- Further order
The Judge also made an order saying that when the youngest child finished private education, he had to be to the wife an additional sum equal to 50% of the private school fees. The husband appealed against this and other matters.
The Court of Appeal allowed the husband to appeal on the basis that the Court could not see any reason for the increase in the maintenance as the wife had been assessed on her income needs and they were provided for by the order already made. It would difficult to predict now whether the wife would need the additional payments in four years time. In contrast, the husband may still need to make a contribution to their younger child’s university education and there may be other financial circumstances that may need to be considered at that time. The Court did not have a crystal ball. The Court found that the best time to review the amount of maintenance would be in the future and any variation should be considered at that point depending on the circumstances at that time.
In terms of the decision, it is acknowledged that an upward automatic variation is unusual and this decision probably means that no more orders of this type will be made.
With reference to stepped downward variations (ie reduction in the maintenance), these orders are much more common on the basis that the receiving spouse may be given time to re-train and increase their earning capacity, their needs may diminish when children attain their majority and therefore no longer financially dependent or their housing needs may change when capital can be realised to downsize so housing needs are less.
There is also the statutory requirement in family financial cases to consider a clean break order thus reduce dependency over time.
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