The mystery of ex-spouse maintenance

Due to a recent case, SS vs. NS (spousal maintenance) [2014], the issue of maintenance has been ruled upon again. The judge even said, in respect of some of the wife’s paperwork, “it seems to have been written with a pen dipped in vitriol”.  Milton Keynes family law solicitor John Egan takes a closer look. 

Just to clarify, one party to a marriage or civil partnership has a claim against the other party for periodical payments for as long as the court deems appropriate. This is known as maintenance.

How a judge decides maintenance is based upon a number of factors such as financial needs and income/earning capacity, to name but two. Of course, financial needs and one’s lifestyle has no yard stick and is viewed by the judge in light of all the circumstances.

That is what makes the issue of maintenance so nebulous and diffi cult to address during the balancing exercise that has to be conducted after a relationship breaks down.

But why should there be any maintenance? Well the rationale behind it is to meet the needs which the relationship has generated. The most obvious being where the wife has taken a career break to have children, who might still be dependant at the date of the separation.

In the case of SS vs. NS (spousal maintenance) [2014], the husband suggested that he should pay maintenance which reduced over the following 11 years plus 20% of any net cash bonus he received for the next three years.

The wife proposed a higher amount of maintenance to last until she was of retirement age, with the possibility of extending that term if necessary, plus 30% of the husband’s net bonus going forward. 

The judge said that neither of the proposals put forward were reasonable! In proceedings the court has expenditure lists from both parties. It is not unusual for each party’s expenditure list to add up to more than their combined income or expected earning capacity. For that reason they are often unreasonable and have elements of being aspirational.

There are some aspects of an annual budget that vary from year to year and at times are discretionary or additional. The judge has to calculate a total figure taking all of this into account for the award of
maintenance. Maintenance will then be paid from one party’s salary to the other. There is also the possibility of a balance from any bonus up to a stated maximum each year. 

The problem for anyone having to consider such variables is that the outcome cannot be predicted by way of any formulae, given the almost infinitesimal different family circumstances that will be presented from time to time. 

When deciding maintenance, there are a number of factors the judge must consider:

1. Maintenance is awarded when evidence shows that choices made during the marriage have generated hard future needs. For example, a career break to have children
2. An award should only be made if needed, except in a most exceptional case, where it can be said that the sharing or compensation principle applies
3. If the needs are not causally connected to the marriage, the award should generally be aimed at alleviating significant hardship
4. Termination of maintenance with a transition to independence should be made as soon as it is considered reasonable
5. If there is a choice between an extendable term and an order for life, the court should opt for an extendable term.  This reinforces that the parties should achieve independence as soon as possible
6. Standard of living is relevant but not decisive 
7. Where maintenance comes from income and bonus, base salary should meet the needs of strict necessity. 

In the case SS v NS (spousal maintenance) [2014], maintenance will finish when their youngest child reaches 18 years old although it could be extended in the event that the wife is able to convince a court that it would be fair and reasonable. 

Interestingly, the idea of paying your ex-spouse maintenance for life is not shared by other countries. In Scotland, for example, maintenance post-divorce is only payable for three years, except in
exceptional circumstances. That said, here in England and Wales, maintenance should be terminated as soon as it is just and reasonable and when the spouse is able to adjust to fi nancial independence without this causing undue hardship.

For more information

Please contact Milton Keynes family law solicitor John Egan or call 01908 202150.

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