Varying maintenance? What's the right answer?

18th June 2018 Family Law

As the summer sunshine continues, so too does the flow of Supreme Court appeals dealing with fundamental family law questions. In the last month, they have looked at extending civil partnerships to straight couples and the modern approach to 'unreasonable behaviour' within divorce petitions. The latest issue considered by the UK's highest court has been maintenance, specifically, the correct approach to varying a maintenance order years after the divorce and financial settlement have been finalised.

In Mills v Mills, husband and wife divorced in 2002. Under the financial settlement, the wife was to receive a capital sum and £1,100 per month for joint lives (until either the husband or wife dies). In 2014, the husband applied to discharge (bring to an end) the maintenance order or, at least, reduce the monthly amount payable. At the same time, the wife applied for an increase in maintenance as she said she could not meet her basic needs.

The husband argued that the wife had lost her capital due to 'gross financial mismanagement' and could work more to increase her income. The family court ordered that the original maintenance order should stand, unchanged. However, the Court of Appeal allowed the wife's appeal and increased her monthly maintenance to £1,441. The Supreme Court has now heard the husband's appeal and will consider whether the Court of Appeal was wrong to factor in the wife's housing costs when these had already been provided for in the 2002 capital settlement.

The Supreme Court generally takes around 12 working weeks to publish judgements after a hearing, which means that in this case, we are unlikely to get a decision until the autumn. When the judgement lands, as well as an individual decision for Mr and Mrs Mills, I think we can expect some fairly deep analysis of the purpose and ethics of long-term maintenance.

Under the law in England and Wales, spouses and civil partners can be awarded maintenance to meet their own income needs at any level, for any length of time, with or without a hard cut off date. This is not the case in many other jurisdictions, for example in Scotland where the maintenance regime is much more restrictive. In this country, in many cases, there will be no ongoing payments other than maintenance for dependent children. However, payments of 'spousal maintenance' are by no means uncommon.

This is a very thorny topic. Should the obligation to maintain one another survive the end of a relationship? You might immediately think, no, beyond a short adjustment period. However, is it fair for a person who has been out of the labour market, sometimes for decades, in order to take on a homemaking and/or caring role with all the benefits this brings to the wider family be expected, especially in later life, to have to generate sufficient income from employment in the absence of a capital sum and/or pension provision?

When we are looking at a variation or review of monthly provision, we might find that a maintenance order may have been entirely appropriate at the time the marriage broke up but many years down the time, the landscape will have changed completely. New jobs, new partners, new homes, changed financial circumstances and economic conditions.

The Supreme Court cannot change the legislation on maintenance. Furthermore, the decision itself can only directly address the question on appeal in the Mills case, which is whether the Court of Appeal have taken the wife's housing costs into consideration when this was factored into the original capital settlement. However, the comments and wider analysis within the judgement whether they be 'pro' or 'anti' the long-term continuation of maintenance orders are likely to set the tone amongst the lower courts and the legal profession for some time to come.

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Danelle Foley is an Associate Solicitor located in Liverpoolin our Family department

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