Christopher Ferguson, family law barrister, passes on some pearls of wisdom from Mostyn J re maintenance

Mostyn J set out guidance on main issues in spousal maintenance in SS v NS [2014] EWHC 4183 (Fam) a £3.3 million asset case. Paragraphs 25 – 46 of judgment (given in Dec 2014) discuss the principles, listed (in précis) at para 46:

• Why does the liability arise at all? There should be evidence of “hard future needs on the part of the claimant”. Length of marriage and relevance of children – “pivotal”;

• An award must have “reference to needs save in a most exceptional case” (ie where sharing/compensation principles apply)

• If the marriage has not actually caused the needs, it should usually be “aimed at alleviating significant hardship”;

• To be ordered for a term “with a transition to independence as soon as is just and reasonable” unless “undue hardship” would ensue. “A degree of…. hardship in making the transition to independence is acceptable” ;

• “If the choice between an extendable term and a joint lives order is finely balanced” aim at the former if possible;

• “The marital standard of living is relevant…..but is not decisive. The ultimate objective, if possible, is independence;

1. Court’s task is not just examination of the Claimant’s individual items, but “to look at the global total and to ask if it represents a fair proportion of the Respondent’s available income” to go towards the Claimant’s support;
2. Where the Respondent receives a discretionary bonus, strict necessities should be met from base salary and “additional discretionary items” can be met by “the bonus on a capped percentage basis”;
3. “There is no criterion of exceptionality on an application to extend a term order”, but one should ask whether the payee had failed to achieve independence and “if so, why”
4. On an application to discharge a joint lives order” consider why it was originally decided to be “too difficult to predict eventual independence”;
5. “If the choice between an extendable and a non-extendable term is finely balanced” the decision should usually favour the economically weaker party (which would generally make a section 28(1A) bar unlikely).