A meal ticket for life? Has our approach to maintenance changed forever?

Posted: 19/06/2015

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The case of Wright v Wright [2015] EWCA Civ 201 generated a storm of press attention. The media has suggested that this case heralds the end for joint lives maintenance orders and that women should return to work following a divorce, rather than looking to their ex-husband for long term financial support. 

Whatever the legal significance of Wright (and it needs to be remembered it was only a refusal of permission to appeal) it certainly seems to have struck a chord with many, both inside and outside the family justice system. 

Of more interest to practitioners perhaps, is the decision of Mostyn J in SS v NS (Spousal Maintenance) [2014] EWHC 4183. Whilst Mostyn J found that it would be impossible to adopt a formulaic approach to calculating spousal maintenance, he suggested that it should be calculated on the basis of needs and the preference should invariably be for an extendable term rather than joint lives orders. It will be interesting to see if Mostyn J’s obiter comments and guidance really do influence judges in the coming months and years. 

Is Wright fact-specific, or do principles emerge?

In Wright, the original maintenance order was made in 2008 following a fully contested hearing; at the time Mr W was 52 and Mrs W was 44. District Judge Cushing ordered maintenance to be paid on a “joint lives” basis as Mrs W had not worked for nine years and the children were then aged three and nine. However, the judge made it clear that Mrs W would be expected to start to contribute financially and that it was important that this happened whilst fitting in with her childcare responsibilities. 

In 2012, Mr W applied to vary spousal maintenance downwards. His income had declined since 2008 and, due to RPI increases, the maintenance had increased. He was also close to retirement. In the meantime, Mrs W had not sought work or updated her skills. 

HHJ Roberts found that it was not appropriate to terminate the maintenance payments immediately. However, she referred to the expectations which DJ Cushing had had of Mrs W in 2008 and took account of Mrs W’s failure to utilise her earning capacity and rejected the reasons put forward to explain her inactivity. 

The judge found that it would be appropriate to order maintenance to be stepped down over a period of five years until 2019 when it would be terminated. At this point Mr W would be 65 and due to retire and the children would be aged 15 and 21. The judge left open the possibility of Mrs W extending the term or varying the level of maintenance until 2019. 

The Court of Appeal refused Mrs W permission to appeal the decision. LJ Pitchfork endorsed the comment of DJ Cushing in the 2008 judgment that “There is a general expectation… that once a child is in year two, most mothers can consider part time work consistent with their obligation to their children” and found that HHJ Roberts had given sufficient reasoning to support her decision. 

If there is a practical lesson to be drawn from Wright, it is surely to ensure that the reasons underpinning a joint lives order are clearly documented. In Wright, DJ Cushing recorded her expectations of Mrs W in her judgment. In a consent order, appropriate recitals can set out the assumptions underlying the maintenance provisions. Clearly documented assumptions will assist both parties when the time comes to vary, whether in mediation, negotiation or by way of court application. 

Will this affect future variation applications?

It is extremely difficult to crystal ball gaze as the decision in Wright is fact specific. On the other hand, the facts (school age children, a mother returning to work, a father approaching retirement) are far from unique. It is likely that judges will therefore bear this decision in mind when considering any future applications to vary maintenance. 

It would be a mistake, however, to assume that Wright marks the end of the road for joint lives maintenance. Only a few months before Wright, in the case of Murphy v Murphy [2014] EWHC 2263 (Fam) Holman J was asked to determine the term of maintenance and whether there should be a step down in the wife’s maintenance in the future. The parties had agreed on all other aspects of the wife’s claim. On the facts, the judge felt joint lives maintenance was necessary. This was due to the young age of the parties’ children (twins, who were three), the fact that he could not also look at the capital award, the very vague generalisations put forward by the husband as to the wife’s earning capacity and the fact that the original order already provided for a reduction in the maintenance payable to the wife of 50p for every £1 she earned (net). Holman J was not swayed by the husband’s reference to the potential changes in the law in this area as set out in Baroness Deech’s private members bill currently before the House of Lords. 

A brief look at the facts of SS v NS

There is a perception, particularly among those practising outside the capital, that the London family courts are over-attached to joint lives maintenance orders. Some would even go so far as to say that joint lives orders have been used as a catch all provision, stacking up problems for the future. 

Helpfully, in the recent case of SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam), Mostyn J carefully considered the historical origins of spousal maintenance. The judge also set out guidance to assist judges in deciding whether spousal maintenance should be paid and, if so, the quantum and term. 

In this case, the parties were poles apart in what they felt would be reasonable ongoing spousal maintenance. The wife sought £60,000 pa for a term of 27 years, which would be extendable, and 30% of the husband’s net bonus capped at £70,000. The husband had offered periodical payments of £24,000 pa for 12 months falling to £18,000 pa for a further four years and then falling to £12,000 pa for six more years, whereupon there would be a bar to extension. 

It was ordered that the wife should receive spousal maintenance of £30,000 pa  for an extendable term which would expire when the youngest child was 18 (in 11 years) and 20% of the net bonus capped at £26,500 pa. This was sufficient to meet her needs and was a fair division of the husband’s income after school fees and spousal maintenance had been met from it. 

Mostyn J’s reasoning and guidance

Mostyn J stated that spousal periodical payments should only be ordered to the extent that they are to meet needs and went on to consider why, on the dissolution of a marriage, such a liability can or should arise. He made it clear that the role of spousal maintenance is not to ensure that a spouse is able to maintain the standard of living enjoyed throughout the marriage. 

Mosytn J considered whether it is possible to develop a formula to determine the amount and duration of spousal maintenance. However, he felt that this may prove an impossible task and reminded himself that since 1857 the decision about spousal maintenance has always been left by Parliament to the unfettered discretion of the individual judge. He did, however, set out (obiter) guidance on the principles to be applied by judges when considering an application for spousal maintenance. They will be seized on by those seeking greater clarity in this complex area: 

• The evidence should show that choices made during the marriage have generated the claimant's hard future needs. The marriage's duration and the presence of children are pivotal factors.
• An award should only be made by reference to needs, save exceptionally where the sharing or compensation principle applies.
• Where needs are not causally connected to the marriage, the award should generally be aimed at alleviating significant hardship.
• In every case, the court must consider terminating spousal maintenance with a transition to independence as soon as is just and reasonable. A term should be considered unless the payee would be unable to adjust without undue      hardship to payments being terminated. A degree of (not undue) hardship during the transition to independence is acceptable.
• If the choice between an extendable term and a joint lives order is finely balanced, the statutory steer should be in favour of the former.
• Marital standard of living is relevant to the quantum of spousal maintenance but is not decisive and should be weighed against the desired objective of eventual      independence.
• The judge must consider whether the spousal maintenance represents a fair proportion of the respondent's available income which should go to support the claimant.     
• Where the respondent's income comprises a base salary and discretionary bonus, the award can be equivalently divided, with needs of strict necessity met from base salary and additional discretionary items met from the bonus on a  capped percentage basis.
• There is no criterion of exceptionality on an application to extend a term order. The court should examine whether it has been impossible for the payee to achieve      independence, and if so, why.
• On an application to discharge a joint lives order, the court should examine the original assumption that it was too difficult to predict the eventual independence.
• If the choice between an extendable and non-extendable term is finely balanced, the decision should usually favour the economically weaker party. 

Conclusion

It will be interesting to see the extent to which there is now an expectation that women should return to work post-divorce and, in turn, whether this leads to an increase in maintenance ordered for a term (extendable, or not) rather than for joint lives. Wright does not go as far as some would suggest, but does seem to have struck a chord, both within the family justice system and in wider society. Along with the decision in SS v NS, Wright emphasises that judges are obliged to look at the facts of each individual case carefully when deciding whether to order spousal maintenance. Gone are the days when clients could expect to receive financial support indefinitely. 

This article was published in New Law Journal in June 2015.

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