Should ‘social change’ give rise to a 5 year cap on spousal maintenance payments?

Where should post-marriage financial dependency end? In a world with a greater emphasis on independence, is the law holding back on allowing divorced couples the freedom to move on and become less reliant on their former partner?

This issue was raised in a recent Court of Appeal case where a former spouse was Ordered to provide maintenance payments of £1,441 to his ex-wife for life, a decade and a half after they divorced.

In 2002, the ex-wife received a £230,000 lump sum plus £1,100 per month of maintenance payments when she separated from her husband. 15 years on, the Court heard that the initial lump sum had been unwisely invested in a series of upmarket properties and she was now effectively back where she started, without any capital, living in rented accommodation, working two days a week as a beauty therapist. The ex-wife returned to Court to seek more maintenance from her ex-husband, whereas the husband sought an immediate clean break with an end to the maintenance payments.

In the Court of Appeal’s ruling, the Judge explained that in the 2002 order,  Judge Everall had calculated the wife’s “needs” at £1,441 a month, but had gone on to Order that her monthly maintenance should not be increased from £1,100 on the basis that she also received the lump sum. The Court of Appeal Judge went on to say “the judge made an error of principle. The Order should have been that the husband pays maintenance in the sum of £1,441 a month until further order of the Court”. The Court of Appeal acknowledged that although she had invested unwisely and was “a poor business woman” she has not been found wanton in having credit card debts and that she is now unable to meet her basic needs. As such an increase in monthly payments was Ordered.

This has led to calls from Barrister Philip Cayford QC, for the law to limit maintenance and encourage independence after divorce. He called for changes to the law to limit spouses to a maximum of five years for spousal maintenance and contended that in a world of social change, the judges had an opportunity to order some finality on the issue. There are over countries which follow this approach already.

The judgement in this case is a stark reminder that spousal maintenance payments can always be varied either up or down, even in situations where one party has made seemingly poor investment decisions. More calls for a cap on maintenance terms in the future and social change might see an alteration in the law but for now, it remains in its current state. Nevertheless we have certainly seen a trend that in the last few years the Court have increasingly been making more spousal maintenance Orders for a fixed term rather than for life.

Paul Lancaster

Paul Lancaster

Paul Lancaster
Family Law Team
0113 227 9215

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