There is an element of “crystal ball gazing” when determining any spousal maintenance order. A court may have to decide upon a person’s likely future earning capacity, and estimate the income needs of two parties. The Court of Appeal however has now made clear that it is not acceptable for a financial order to include an automatic increase of spousal maintenance four years after its creation. Any variation will need to be consider at that future time, upon an application to vary by either party.
In the case of Aburn v Aburn* the Appeal court was asked to decide whether the lower court had made a correct decision when it ordered that a GP husband should pay £1000 per month to his wife until his child finished A-levels at private school, and that the amount should then increase by the amount prescribed by this formula:
“the said periodical payments due each month shall be increased by a sum equivalent to 50% of the total private school fees and associated charges paid by the respondent in respect of the child H in the last completed school year of her secondary education, divided by 12”.
The idea behind the order was that the Husband would no longer be paying school fees, and could therefore afford to pay more spousal maintenance to his former wife in four years’ time instead.
The Court of Appeal stated in February that
“the point at which H leaves school may generate or coincide with other significant changes in the parties’ respective financial circumstances. For example, H, who currently lives at home and who is no doubt a draw upon the wife’s income, may go away to university thereby, in that respect, reducing the wife’s needs to an extent. The wife’s earning capacity, which was necessarily a matter for informed conjecture at the 2014 hearing, will be more readily identifiable. The husband’s finances may have changed either as a result of systemic alterations in the NHS or through personal choices he may make.”
It is not possible to simply conclude that a school fee payment made by the Husband should be redistributed to the Wife, without consideration of the ongoing costs to the Husband of the child’s university expenses at the conclusion of secondary education. Either party’s income and outgoings could significantly change during that time period.
The guiding principle of the court is set out as follows:
“Should the circumstances justify it, it remains open to the parties, either upon H leaving school or, indeed, at any other point, to apply to the court to vary the periodical payments order. Should they do so, the court will evaluate that application in the light of all of the known relevant factors at that time.”
*Aburn v Aburn [2016] EWCA Civ 72
Receding Floods by Brian Tomlinson
