In a recent case of ours, we were successful in applying to vary a joint lives maintenance order made almost 10 years ago, with payments covering the next few months being capitalised and there being a clean break of income claims. Bearing in mind our client could have continued having to make these monthly payments for the rest of his life this was an excellent result and got us thinking - is now the time to think about challenging the status quo and apply for joint lives orders to be varied?
Spousal maintenance payments is one of the orders the court can make on divorce and have the effect of providing ongoing financial support to a party by the other. The purpose of such an order is to ensure that the receiving party has enough income to meet their reasonable needs, considering the standard of living enjoyed during the marriage. The most common reasons spousal maintenance may be ordered are if a party has health needs and so is unable to work/their capacity to work is limited; there are young children which one party is the main carer for, or where a party has not worked during the marriage for whatever reason and needs time to get back on their feet and gain financial independence, perhaps including a period of study to gain qualifications. .
It is important to note that within England and Wales, spousal maintenance is not an automatic right just because one party earns more than the other. Individuals must prove they need it and a careful balancing exercise of income vs outgoings needs to be undertaken, along with consideration of whether the paying party can actually afford to pay in light of their own income and outgoings. In most cases, spousal maintenance is not required and so the parties’ income claims are dismissed. This is particularly the case where both parties have their own careers and/or where there are no children and/or where the marriage is short.
Previously, it was common for spousal maintenance to be ordered on a ‘joint lives’ basis, particularly where the receiving party had not worked during the marriage, perhaps because of childcare responsibilities. A joint lives order has the effect of securing payments for the receiving party for the rest of the parties joint lives, save for these can be terminated in limited circumstances (known as a ‘trigger event’) such as the receiving party’s death, remarriage, cohabitation or further order.. These orders have been hugely criticised as not only do they make one party financially reliant upon their ex-spouse, but it also ties the payer to the receiving party for the rest of their lives. It is tough to see how this tie allows individuals to move on with their lives and form new relationships. In more recent years, there has been a clear shift away from these orders and they are now made much less frequently, with parties that have not worked or only worked part time during the marriage being expected to go back into the job market and achieve independence.
It is possible to vary an order for spousal maintenance if circumstances have changed since the original order was made, but there are various factors which the court must consider when dealing with applications to vary maintenance. These include, but are not limited to:
- The welfare of any minors of the family;
- Evidence justifying a variation;
- The clean break principle;
- Fairness
We now see less and less orders for spousal maintenance, especially those on a joint lives basis. If ordered, the majority of orders are for a fixed period of time.
The Court’s current approach is clear that the expectation is for individuals to be self-sufficient following a divorce (where possible) and for a clean break to be achieved, even if this is several years down the line.
For the individual currently paying spousal maintenance, they may feel they are ‘stuck’ and that they cannot challenge the status quo. This is simply not the case, and there may have been a change in circumstances that would justify the order being varied or discharged, like there was in our case.
If you would like to speak to a member of the family team, please feel free to contact us on 01926 886688 or complete our enquiry form here.
This article was co-written by Laura Stocks, Senior Associate in our Family Law Team and her colleague, Lucy Compton, Senior Paralegal.
