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Spousal Maintenance – Where Are We Now?

Louise Barretto's picture

Most of my clients are understandably anxious about whether they will be expected to pay, (or will receive) spousal maintenance for the rest of their lives after divorce.

This is not always an easy question to answer with certainty at the beginning of a case. Generally, case law shows a move away from joint lives awards.

The power of a court to award spousal maintenance stems from legislation [Matrimonial Causes Act 1973 S23 (1) (a)] but the way that this is applied differs from case to case. The judge has a wide discretion in making orders and so outcomes may differ even on similar facts.

In summary the court should consider the factors below when reaching a decision about spousal maintenance amounts and duration / term according to Mr Justice Mostyn.

The evidence must show that the choices made by the parties during the marriage have resulted in the party who is claiming spousal maintenance needing support after the divorce. Important factors are the length of the marriage and the existence of children.

Awards should, in most cases, reflect need, rather than sharing. It will only be in exceptional cases that the maintenance award is based on a sharing of post-divorce income.

In each case a court must consider a transition to independence of the receiving party as soon as it is just and reasonable. A term order rather than a joint lives order should be considered unless the receiving party would not be able to adjust without undue hardship.

The standard of living during the marriage provides a guide to the appropriate amount of the award.

Where the paying party earns an income that consists partly of a basic salary and partly of a discretionary bonus the award should reflect basic needs being met from the paying party’s basic salary and discretionary items being met by a percentage of the bonus, subject to a maximum percentage.

Where a court is asked to consider an extension of a term order, the judge will need to examine whether the receiving party is able to acquire financial independence and what steps if any can be taken by her (or him) to achieve this.

If the judge is faced with a finely balanced choice whether to grant an extendable or non-extendable term, then he / she should usually make the decision in favour of the receiving party, although the judge will want to set the receiving party on the road to financial independence.

Needs are elastic and there is a lot of room for the judge to exercise his / her discretion in determining the amount that should be awarded. Consideration will be given to: the receiving party’s budget, the amount of the paying party’s wealth, the length of the marriage, the receiving party’s age and health and the standard of living. This is an art, not a science.

If a party approaches the court for a variation of an existing maintenance order the judge can, at that stage, reconsider whether a clean break can be achieved.

Of course, there are many nuances that I have not covered in this article which is intended as a summary only.

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Louise Barretto's picture

Louise is a partner in our Family Team and a solicitor specialising in all aspects of family law, with a particular emphasis on complex financial matters, including those involving business assets and those with an international element.

She is dual qualified in England and in South Africa. Although she now practices solely in England, she deals with many cases which have a South African connection.  She has  been called upon to assist as an expert witness on English divorce law in the High Court of South Africa.