Paying maintenance to an ex-spouse has always been a controversial issue. There is a sense that the tide is turning in the courts, particularly against life time support. If it is payable at all, how long after divorce should a person have to maintain an ex-spouse?
The emotions that this gives rise to, and the bitterness which can be caused, was recently highlighted by the case of Peter Morris, a software company manager, who was ordered to pay maintenance of £2,000 per month (£24,000 pa) to his ex-wife, in addition to the capital settlement she received.
They had been married for 25 years. Prior to marriage, Mrs Morris had enjoyed a successful career as a recruitment consultant. In agreement with her husband, she had given up her career to raise their three children and tend to the house. Throughout the 25 years of marriage, Mr Morris was the main breadwinner earning approximately £240,000 a year (about £130,000 after tax) by the time of their divorce in 2013.
He failed to pay in line with the Order. She made an application to enforce the maintenance order and the arrears. Unusually, (and no doubt because he refused to comply or co-operate) Mr Morris was sentenced to a six week suspended jail term. He has appealed against the maintenance obligation and the suspended jail sentence, to the Court of Appeal, claiming he cannot afford to pay the maintenance to his ex-wife. The ruling from the Court of Appeal is still awaited. He will need to persuade the court that there were good reasons for a clean break, which may be difficult if he continues to earn at the rate he did when the court made the first decision; and also that his wife can transition to a situation where she receives no support, without significant financial harm.
A clean break order has the effect of ending all financial claims that someone has at the end of a marriage with the result that both parties have no further claims against the other’s assets or income.
The court tends to take two approaches if it decides that there is an ongoing maintenance obligation to a former spouse. One approach is to order a short but defined period of adjustment for the receiving party after which the payments stop with no right to seek an extension. This limits the maintenance payable to enough time to make sure that the ex-spouse can make appropriate adjustments (including training or getting a job) to meet their reasonable needs.
While the courts will now rarely grant an order that maintenance be paid for the rest of the wife’s life (or until she remarries). The alternative approach taken by the court is to have a longer, gentler transition to independence without imposing a strict term. This view is taken due to the uncertainty of whether an ex-spouse would be in a position to meet their own needs in the future. The onus is placed on the husband to apply to the court at a later stage, perhaps when he retires, or when he thinks the wife should have made the transition, for an order reducing or ending the support. Sometimes the on-going support can be turned into a capital sum at that later stage.
In either approach, the earning capacity and financial needs of each party are the first consideration of the court. “Needs” has a wide interpretation, with higher value cases being more generously interpreted than in a middle or low value cases. This difference in needs was evident in the recent case of Christina Estrada, who included in her needs budget £21,000 per annum for shoes as that was evidence of the lifestyle she had enjoyed in the marriage. In most divorce cases, there will be a reduction in the standard of living that they can both enjoy after the marriage has ended, but the court will try to ensure that this is not to the extent that only one of them suffers undue hardship.
The family team at Birketts are all Resolution members and try and reach an agreement before issuing a Court application. For further information on maintenance or to discuss a family law matter, please contact the Family and Matrimonial Team.
The content of this article is for general information only. For further information regarding paying maintenance to an ex-spouse, please contact a member of Birketts Family Team. Law covered as at July 2016.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2016.