Spousal Maintenance - Is it a meal ticket for life?

Marital disputes over spousal maintenance often prevent couples resolving a financial settlement on divorce.

In a recent High Court case of  SS v NS (Spousal Maintenance), Mr Justice Mostyn gave comprehensive guidance setting out eleven relevant principles which come in play on an application for spousal maintenance which are as follows:-

  1. A spousal maintenance award is properly made where there is a need and where evidence shows that choices made during the marriage have generated hard future needs on the part of a claimant.Here the duration of the marriage and the presence of children are pivotal factors. The Judge made reference where one party has had a career break to concentrate on motherhood and the family in the middle years of their lives comes at a price which in most cases is irrecoverable. Furthermore a former husband should meet his former wife’s needs rather than the taxpayer.
  2. An award should only be made by reference to needs, save in most exceptional case where it can be said that the sharing and compensation principle applies.
  3. Where the needs in question are not causally connected to the marriage, the award should generally be aimed at alleviating significant hardship.
  4. In every case the court must consider ending a spousal maintenance order with the claimant becoming independent as soon as it is just and reasonable.Maintenance orders should be for a specific term unless the claimant would be unable to adjust without undue hardship at the ending of the payments. A degree of (not undue) hardship in making the transition to independence is acceptable. The Judge noted that the Law Commission in its report, “Matrimonial Property, Needs and Agreements (26 February 2014), stated that financial orders should be to enable a transition to independence, in light of the choices made within the marriage, the length of the marriage, the marital standard of living, the parties expectations of a home and the continued shared responsibilities in the future.
  5. If there is a balanced choice between an extendable term order or an order for parties’ joint lives, then the former should be favoured.
  6. The marital standard of living is relevant to the amount of spousal maintenance payable but is not decisive. That standard should be carefully weighed against the desired objective of eventual independence. The Law Commission had recommended that the transition to independence may mean that one party is not entitled to live for the rest of their joint lives at the marital standard of living unless they can afford to do so from their own resources. The Judge in fact held that as time passes, how the parties lived in the marriage becomes irrelevant.
  7. The essential task of the Judge in quantifying maintenance is not merely to examine the individual items in the claimant’s income budget but also stand back and look at the global total and ask if it represents a fair proportion of the payer’s available income.
  8. If the payer’s income comprises a base salary and a discretionary bonus, the claimant’s award may be equivalently partitioned, with needs of strict necessity being met from the base salary and additional, discretionary, items being met from the bonus on a capped percentage basis.
  9. Where there is an application to extend a term order, there is no criterion of exceptionality. On such an application an examination should be made of whether the implicit premise of the original order of the ability of the claimant to achieve independence has been impossible and, if so, why.
  10. On an application to discharge a joint lives order, an examination should be made of the original assumption that it was too difficult to predict eventual independence.
  11. If the choice between an extendable and a non extendable term is finely balanced the decision should normally be in favour of the economically weaker party.

In conclusion, the High Court decision gave firm views that spousal maintenance should generally be assessed by reference to needs and the decision may herald a move towards term maintenance instead of an order for maintenance for the parties’ joint lives (till death do one of us part”), although such orders may be capable of extension should circumstances allow. Therefore, spousal maintenance should not be regarded as “a meal ticket for life” where independence can be achieved in foreseeable future depending on the circumstances of each case.

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