Fifty Shades of Grey
  • 29th Jan 2015
  • Article written by Emma Palmer
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Before you panic and worry that you have in error strayed into the realms of titillating fiction, then be reassured, the title of this article is really but a metaphor for that puzzling conundrum that is spousal maintenance.  Or, more specifically, the mysteries of how long and how much should be paid.

Spousal maintenance is maintenance payable by one spouse or former spouse to the other, in their own right and in addition to any maintenance payable for the benefit of children.  I last considered this taxing question nearly a year ago when I wrote “Spousal maintenance – where are we now?”  

At the time the case of Murphy-v-Murphy had put joint lives spousal maintenance very much back on the table for ex-spouses and I should imagine many a supporting spouse at the time going through a divorce groaned in horror.  Some more clarity is provided by the case of SS-v-NS (Spousal maintenance) [2014] EWHC 4183. In this case, Mr Justice Mostyn analysed the historical development of spousal maintenance and provided some helpful guidelines as to its modern application. 

This case concerned a couple aged 39 and 40. They started living together in 2002 and were married in March 2007.  They had three children aged 11, 9 and 7, all of whom were educated privately and were cared for primarily by their mother. The parties had separated in 2013. The husband had formed a relationship with a new partner and was living with her and her child from another relationship and they were expecting a baby together by the time of the court hearing. 

The husband was a banker when the parties met working for a top bank. However, in 2010 he was diagnosed with cancer and, although this was now in remission, he still suffered from the after effects. This had led him to make a life choice and take a less intense role at a ‘lower division’ bank.  By his own analogy he had moved from Manchester United to a Championship club.  He admitted to having done this to secure his existing earned compensation and to maintain a good basic salary.

The wife had not worked since shortly before the arrival of their first child. Although, by the time of the hearing, the wife had obtained part-time employment working at the reception of a gym and was also training to become a Pilates instructor.

They had total assets of £3.3m, all of which it was accepted were matrimonial assets.  Just over £1.8m of these were easily realisable, the balance being unvested share options and pensions.  The husband's pay with his original employers was a mix of basic salary and bonus (share allocations which vested over time). 

Mr Justice Mostyn helpfully carried out a detailed analysis of the law which provides that, after divorce, there may be an obligation for spousal maintenance possibly until the death of the recipient. He also drew comparison with foreign jurisdictions (such as Scotland) where spousal maintenance can only last for up to three years often causing grave hardship in his view. He reminded us that decisions about spousal maintenance have always been left by Parliament to the unfettered discretion of an individual judge interpreting previous case law and looking to the principles set out in the legislation.  With time the judicial approach has changed considerably to reflect changes in society.

He considered the Law Commission’s deliberations on whether to introduce a formula for spousal maintenance as they do in Canada and concluded this would be almost an impossible task.  He listed the following principles when assessing spousal maintenance:

1. The duration of the marriage/presence of children are pivotal factors – the choices made by the claimant has generated future needs that must be met.

2. Awards should only be made by reference to needs except in exceptional cases where the sharing or compensation principle applies.

3. Awards should be aimed at alleviating hardship.

4. In every case the Court must consider termination of spousal maintenance with a move to independence for both parties as soon as possible and a degree of not undue hardship in making the transition to independence is acceptable.

5. Where the choice between joint lives maintenance and an extendable term is finely balanced the Court should always favour the latter.

6. The standard of living of the marriage is relevant to quantum but not decisive and should be weighed against the desired object of independence.

7. The Judge must not only look at the individual items in the claimant’s budget but also stand back and look at the whole position to see if it is a fair proportion of the payer’s income.

8. If the payer’s income is salary and bonus then the two aspects should be considered separately with needs of necessity being met from salary and discretionary items being met from bonus on a capped basis.

The Matrimonial Causes Act 1973, as amended in 1984, of course already specifically placed an obligation on Judges to consider how long maintenance should last, and for that obligation to be ended as soon as is just and reasonable.  In reality Mostyn has bought us back to that point again.

Whether this lessens the varying ‘Shades of Grey’ applied in spousal maintenance cases remains to be seen.

Certainly, without a formulaic approach, as we have with child maintenance, there are still areas of grey but maybe not quite as many!   The guidance in this case tells us that consideration of spousal maintenance must now first address whether there are hardship needs to be met. Only once this is established does the question of how much, and for how long, arise to reflect the growing trend towards the independence of both parties.

The family team at Whitehead Monckton have a wealth of experience providing guidance and advice in all areas relating to separation or divorce. If you wish to discuss any of the points raised in this article, please contact a member of the Family Team.