Till death or marriage do our finances part19 Jun 2012
Over the last decade or so there has been a noticeable change in the way Courts are making orders for spousal maintenance when a couple divorce.
For some time the norm has been to create a ‘joint lives’ order for payments to continue until death or remarriage (or further court order), as opposed to a fixed term order for a specific length of time. This was because Judges were very wary of ‘crystal ball gazing’ in an attempt to second guess when the spouse receiving the payments would attain financial independence.
The effect of a joint lives order is that it becomes the responsibility of the payer to apply to vary (usually reduce or end) the terms of the order. Judges preferred this because in the case of a fixed term it was the responsibility of the payee to apply to vary terms and the test of ‘exceptional justification’ for variation, known as the Fleming Test (after the case of Fleming v Fleming in 2003) was extremely difficult to satisfy.
However recent case law, particularly the recent case of L v L has shown a shift in judicial thinking that the Fleming Test no longer survives and Judges are considering the test for variation as whether the purposes of the earlier order have been fulfilled. Courts are becoming more wary of making joint lives orders, for maintenance to survive indefinitely. This in turn means that more fixed term orders are being made, which moves the responsibility for extending terms on to the payee (still usually the wife).
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