Spousal maintenance – recent case law19 Jun 2012
When the court awards spousal maintenance (sometimes known as alimony to our American friends) it can be for a term to a specified date, or for joint lives where it continues indefintely. A third option is that at the end of the term, the court can order that the amount reduces to a nominal order, where no money is paid, but the term still continues on a “joint lives” basis or to a specified date in the future.
If the maintenance is straightforwardly for a term only, then unless the court orders a “bar” at the end of the term, the spouse can come back and ask the court that the term be extended to a later date.
The 2003 Court of Appeal case of Fleming v Fleming, remains good law on this.
The couple had been married for 17 years. In 1998 the financial order on divorce order divided properties between the parties and the husband was to to pay the wife £1,000 per month until 20 December 2002, i.e. a term order.
In July 2002 the wife applied to extend the maintenance to be for “joint lives,” albeit reduced to £500 per month. The Court of Appeal held that it would only be in those cases where the court was persuaded there was “exceptional justification” for extending a term order, that a spouse could seek an order to go beyond the original term set. The Court of Appeal reminded lawyers and Judges that in statue, when such an application to extend maintenance is before a Judge, the court must consider whether it would be appropriate to now make a “clean break” and end all financial responsibilities, provided that that outcome is achievable without undue hardship to the person receiving the maintenance.
It is a useful reminder to us all in negotiations, we try to “crystal ball gaze” as far as we can to the future financial picture for both husband and wife, but there are no certainties. The payers (usually the husband’s) seek term orders. If wives (particularly those with young children who’s earning capacity is therefore limited) are willing to agree to this then they must ensure they are comfortable with the capital split and that they can manage when the term comes to an end. The bar has been set quite high to argue that the term shouldn’t end when originally ordered.
Lisa Pepper is a Partner at Osbornes, a qualified Collaborative Lawyer and a Resolution Accredited Specialist. She is also a Director of Resolution which is an organisation of over 6,000 lawyers and family justice professionals who believe in a constructive, non confrontational approach to family law matters.
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