When is it “time up” for maintenance payments?

Sarah Crilly

The recent trend of cases dealing with the issue of maintenance by one spouse of the other following divorce has seen a major u-turn.

Ordinarily after long marriages, the party who was weaker in terms of income, employment chances and earning capacity could benefit from court orders which provided for them being maintained for the parties’ joint lives. Even after medium length marriages this could sometimes be the case, especially where there were young children.

However, two Court of Appeal decisions have made it clear that maintenance should be terminated as soon as it is “just and reasonable to do so”.

These two cases involved a husband banker and trainee pilates instructor and equine surgeon and housewife respectively.

The banker earned approximately £170,000 net per year and the wife was expecting to earn £23,000 net. The wife sought £60,000 per year for 27 years. The Judge awarded £30,000 a year until 2025 when the wife would be 50.

In the next case, the husband earned £150,000 a year whereas the wife had been a housewife. She received £33,200 a year for herself, which was initially for joint lives but which was reduced on Appeal to six years, after which it would cease.

A number of interesting points came out of both cases, not least the expectation that once children had reached a certain age, a mother would be expected to work and further that a working mother would be a good role model for the children, even saying: “vast numbers of women with children just get on with it”.

In the second case, the Judge felt that the wife had made no effort to get a job without good reason and had been evasive about her efforts to find work.

In every case the court must consider a termination of spousal maintenance.

Although Parliament’s intention has always been that parties following divorce should be subject to a financial clean break wherever possible, that could not be the case after long marriages where one party had not worked and remained at home to care for the children.

Most cases we see involve parties who are both working and have similar incomes but in the higher money cases, the disparity in incomes can be substantial.

Now with changes in society and employment law, spouses are expected to work no matter what their age and the family courts are now catching up with reform expected of the matrimonial legislation in the not too distant future. The Divorce (Financial Provision) Bill is due to go before the House of Commons and suggests that a term of periodical payments should not exceed five years unless serious financial hardship is likely.

Millions of single parents hold down a job and raise their children. Latest statistics show that there are three million single parent families in the UK and over half of single parents (nearly 60%) are in work.

Courts are now saying that once children are aged 7, mothers can begin work part-time and make a financial contribution. They are also saying that the amount of maintenance will be restricted to needs and standard of living will not be a deciding factor.

Being dependant on your spouse is now quite an insecure position to be in. Even if you can demonstrate a degree of hardship in making the transition from maintenance to independent living, that will not be sufficient to make a case for continued support. After medium and long marriages, a maintenance order should not be taken for granted.