One of the most common complaints we hear in family law disputes is that when a marriage (or a civil partnership) breaks down, they shouldn’t have to share their income with their ex, especially if they believe their former partner is more than capable of earning their own living.
What grates particularly is that there is no set formula for calculating spousal support and that whilst a new, cohabiting, relationship may be grounds for a change in the amount of spousal support paid it is not automatically a trigger for the termination of payments. Although an order can be made for a set term, the recipient can apply for that term to be extended, unless there is a specific bar on their doing so in the original court order. While an order is in force either party can apply to vary the sum paid, upwards or downwards, if they believe there has been a change in their own or the other party’s circumstances which justifies it. Historically if there had been a long marriage with one party being the main earner the normal procedure would be to seek a “joint lives” order for spousal maintenance, so that maintenance would be paid until the recipient remarried or either party died.
It will be a relief to many therefore that the courts’ approach is changing.
Although it was established some time ago that courts have a duty to try and create a clean break between divorcing couples as swiftly as possible, for many years the assumption was that if there were young children a clean break was highly unlikely and if one party had a much higher income than the other that income was often argued to be an asset of the marriage itself and one that should be shared. This was particularly the case where the lower paid partner had sacrificed their own career prospects in order to boost the higher earner’s career.
In recent years however it has become increasingly well established that an order for spousal periodical payments can only be made in order to meet needs, unless exceptional circumstances arise. The most recent case on this issue is SS v NS, a 2014 case that gives comprehensive guidance. The headline points are as follows:-
If the evidence shows that choices made during the marriage have led to future needs on the part of the claimant then a spousal support order can be properly made. In this case however the length of the marriage and whether or not there are children will be pivotal factors.
A spousal maintenance order should only be made by reference to needs save in a “most exceptional case” where it can be said that the principle of sharing a significant income or compensating one party for the sacrifice of their career, applies.
If the needs of the claimant have not been caused by something related to the marriage the order made should generally be aimed at addressing significant financial hardship.
In every case the court must consider an end to spousal maintenance so that the claimant becomes independent “as soon as it is just and reasonable”. Some degree of hardship as the claimant moves to independence is reasonable and any order should be for a set term rather than for joint lives unless the recipient would be unable to adjust “without undue hardship” to the ending of payments. A joint lives order can be brought to an end prior to the recipient’s death or remarriage but it’s up to the payer to persuade the court that there is some reason why the order should end.
The standard of living will be relevant to how much maintenance should be paid but is not a decisive factor. Quite often the standard of living in the marriage has been an obstacle to settlement because no agreement can be reached as to a level of maintenance that will provide the standard of living sought. This guidance is therefore particularly helpful.
So, whilst there’s still no certainty there is far clearer guidance than there has been before. However, it should be remembered that where one spouse has a high income and the other has a much lower or no income, then in most cases, particularly those involving medium or long marriages, that will lead to a significant needs based claim. But the major disadvantage of the needs based claim is that it will frequently reduce over time in order to meet the statutory objective of eventual independence.
Our family law specialists have a wealth of skill and experience in dealing with the resolution of financial claims at all levels. We will tell you at the earliest possible stage what we think the most likely outcome will be in relation to all aspects of your finances. We are unusual in that not only do we have solicitors in our team; we also have an in-house specialist family barrister, Roderick Moore, who is skilled in the resolution of family finances. We are therefore able to provide you with a team approach to your case right from the outset, ensuring you have the highest quality representation in negotiations and any contested court proceedings.