Rainscourt Family Law Solicitors

Spousal maintenance: children change everything

If you consider spousal maintenance as a salary for a former spouse, you can appreciate that, just as you can have a zero hours contract or a fixed term contract or many other different types of legal arrangements in place with your employer, so the terms upon which a former spouse receives spousal maintenance will massively vary from one individual to another.  The amount may be a fixed sum for life or it could be a sum which alters over time with inflation or perhaps it will be maintenance for a nominal sum which can be increased to a greater amount if and when required.  The terms of the spousal maintenance or periodical payments are part of the negotiations which will need to take place to reach a financial settlement.

Monthly remuneration is not the only aspect which falls to be considered in a financial settlement on divorce.  There will usually be capital and pension assets to consider as well.  These will need to be incorporated into the negotiations, and the level of maintenance payable and the length of time for which it is paid may be affected by the amount of capital and pension assets in the pot. If, for example, it is agreed that the maintenance is to stop after a period of four years, there may be additional capital paid to the party to reflect that the maintenance will be paid for a short term.  Alternatively, to avoid the question of spousal maintenance altogether, it is possible to “buy a clean break”, thereby paying a greater lump sum to avoid having to pay monthly amounts.

It is against this background that it has been proposed in the House of Lords* that periodical payments should always stop after a three year period.  Whilst this would have the benefit of putting one peg in the ground in the negotiations around which all other issues can then revolve and be resolved, the difficulty is that long term spousal maintenance is often an essential part of producing a fair settlement, particularly if one spouse has caring responsibilities which hampers their earning capacity.

A good example of that came to the High Court last week.  Mr and Mrs Murphy were divorcing after 6 years of marriage, which had produced twins aged 3.  The Wife had worked in Selfridges until 2009 earning approximately £30,000 per annum, and had not worked since the twins were born in 2011.  The Husband was of the view that the Wife needed spousal maintenance now, but that the court should order a date on which the spousal maintenance should reduce, and order that the payments were to stop when the children reached 18.  Even if someone is not working, the court has to look at whether someone has an earning capacity and at “any increase in that capacity which it would in the opinion in the court be reasonable to expect a party to the marriage to take steps to acquire” and the Husband thought that the Wife did have that earning capacity.

The judge asked the Husband’s representatives to identify what job Mrs Murphy could do when she had twins to take to school at 9am and pick up from school at 3pm and care for in the school holidays for 14 weeks a year.  The judge made clear his view that “What, frankly, the arguments by the husband overlook is that the having of children changes everything. Of course this wife could never have expected a “meal ticket for life” on the basis of six years of marriage and two years of cohabitation if there had been no children. Far from it, she would no doubt have continued to work at Selfridges, or in similar employment, and at the point of the breakdown of their marriage and divorce there would have been a fair capital division and a clean break and each would have gone their own way. But the fact of having children, and their obvious dependence in this particular case on their mother for their care, changes everything, as I have said. The economic impact on this wife is likely to endure not only until they leave school but, indeed, for the rest of her life.”.

Consequently, the judge ordered no step down and no bar on the spousal maintenance.

*Divorce (Financial Provision) Bill

** Murphy v Murphy [2014] EWHC 2263 (Fam)

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