Not-quite-death knell for joint lives maintenance

Just when family lawyers thought that we were out of joint-lives maintenance orders, a recent case has brought us back in.

In Quan v Bray [2018] EWHC 3558 (Fam) , heard in the latter stages of 2018, Mr Justice Mostyn decided that in the particular circumstances of this case, particularly that the wife would not be able to adjust to the termination of spousal maintenance without undue hardship, an order was appropriate for the payment of spousal maintenance for the husband and wife’s joint lives.

This decision is in stark contrast to recent cases; in particular the case of Waggott v Waggott [2018] EWCA Civ 727 which many family lawyers thought had ‘sounded the death knell’ for joint lives spousal maintenance orders.

The issue of spousal maintenance (formally known as periodical payments orders) is governed by section 23 of the Matrimonial Causes Act 1973, subsection(1)a) providing that the court may make “an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order”

Theoretically, the ‘term’ for such payments is not defined and so one party to the divorce can be ordered to pay maintenance to his or her spouse for the rest of their lives. The reaction to this from the potential payee is often one of horror; however section 25A gives some degree of respite by stating: “it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable”.

This is more commonly known as the ‘clean break’ and following the case of Waggott v Waggott it was thought that the court would from now on be more ready to move away from joint lives orders and instead favour a clean break between divorcing couples as soon as possible. Quan v Bray suggests otherwise.

So what does the recent decision tell us? Well, as ever, every case is different. The fact remains that despite the case law, the statute still provides the mechanism for spousal maintenance to be paid for the rest of the divorced couples’ lives. The family court has a huge range of discretion and in cases where one person may not be able to adapt financially to a life away from their former spouse, a longer and in some circumstances indefinite order for maintenance can be made.

Andrew Smith

Andrew Smith
Associate Solicitor
Family Law Team
AJSmith@LawBlacks.com
0113 3222807
@AndyLawBlacks

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