By Neil Graham - Partner at Grayfords
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Til death (or remarriage) us do part

By Neil Graham - Partner at Grayfords

Neil Graham, Partner at Grayfords, specialists in English and International Family Law, asks:

Is it fair, in this age of equality, for a party upon divorce to receive maintenance on a continuing and joint lives basis?

There has been much coverage in the press recently of the case of Mr and Mrs Mills.  After receiving the lion’s share of the liquid capital in 2002 with which to rehouse herself Mrs Mills also received ongoing monthly maintenance payments from her husband of £1,100 until such time as she were to remarry or either of them were to die.  After a series of unsuccessful property purchases Mrs Mills was left with little or no remaining capital and in the invidious position of no longer being able to meet her annual income needs.  The Court of Appeal had to consider whether it was fair that Mr Mills should be required still to pay her maintenance or even to increase the monthly payments despite the fact that he had played no part whatsoever in her financial losses.

The Court of Appeal took the view that the monthly payments should not only continue but should also increase to the figure of £1,441 representing the current level of Mrs Mills’ calculated income needs.

Mr Mills’ legal team have called for a change in the statutory law to limit maintenance to a maximum term of five years.

In Scotland, for example, maintenance is already limited to a term of three years.

The English Court has much greater freedom when deciding how to exercise its powers.

So how does it decide?

First, it is required by statute to consider whether the parties’ financial claims can be determined on a clean break basis.

If that is not possible the Court is then required to consider how long the maintenance payments should continue to enable the receiving party to adjust without undue financial hardship.  The Court may decide that the receiving party should be able to come back to extend the term if they have not been able to adjust within that term accordingly.  Alternatively, the Court may also decide that the term shall be finite and incapable of extension.

Each case turns specifically on the facts and, in particular, upon the extent to which the receiving party can substantiate their annual income needs and how likely it is that they will be able to meet those needs from their own income resources in the future.

Where maintenance is not subject to a finite term it will continue until the receiving party remarries or until either party dies.

Furthermore, where there is a permanent change in the circumstances of the receiving party or the payer while the maintenance is still in payment the level of the maintenance payments can be varied.

Child maintenance, of course, is a separate issue and usually continues until a child reaches 18 or completes their secondary education, whichever is the later.  It is calculated by the Child Maintenance Service and only by the Court where the paying party’s annual income exceeds a certain threshold.

So was Mr Mills unlucky?

Yes and no.

It was accepted in 2002 that Mrs Mills was unlikely to be able to meet her own annual income needs from her own income resources in the future, hence the fact that the maintenance was never made subject to a finite term.  Unless Mrs Mills were to have become self-sufficient it would be difficult to imagine why the maintenance payments should now cease.

However, Mr Mills may be forgiven for feeling a little peeved by the fact that it was, of course, Mrs Mills’ unsuccessful property purchases which ensured that she is neither self-sufficient nor, in fact, now capable of surviving on less than £1,441 per month with the result that the payments have now been varied upwards.  Whilst the Court is entitled to take into account the conduct of either party it can only do so if that conduct is “gross and obvious”.

“Fair is foul and foul is fair”.

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