Wives discouraged from trying to benchmark their long term maintenance claims by making interim applications
A recent decision of Mr Justice Moylan (in the case of BD v FD [2014] EWHC 4443(FAM)) sets out some important guidance for family lawyers advising (usually) wives who find themselves, during the course of proceedings, having to make ends meet on much less money than they had access to during the marriage.
In the case of BD v FD, the parties’ resources ran into tens of millions of pounds and the husband’s income was approximately £1.7m per year after tax. The husband was making global payments for the wife and children amounting to £202,000 per year. The wife’s case was that her husband should be paying no less than £270,000 per year and that a proper, more appropriate, sum was more like £392,000. The wife’s figures were justified by reference to the standard of living that she asserted the parties had enjoyed during the marriage. The husband disputed this.
Mr Justice Moylan was most unimpressed that this application had been made. He felt that the court’s intervention in this case was neither required nor justified and that, on any view, £202,000 per year gave the wife sufficient resources with which to meet her needs. He emphasised that interim applications for maintenance pending suit should only be made where they are needed to address the immediate needs of a spouse which simply cannot await the final resolution of their claims. He said that a final (rather than interim) hearing is the appropriate time for a court to determine, following a detailed consideration of the case, the wife’s long term income needs. Mr Justice Moylan also reminds us that the standard of living enjoyed during the marriage is not necessarily a ceiling on a wife’s income needs but that “a powerful justification” would be required to go beyond that standard, certainly on an interim basis.
It was relevant in this particular case that the wife had assets in her own name of £1.4m (given to her by the husband) and Mr Justice Moylan said that it would have been more appropriate for her to use this to supplement the £202,000 that the husband was paying if she felt that was too low, rather than applying to court for an increase. The wife said she had not done so because she had agreed with the husband not to touch this money but the judge did not consider that this precluded her from doing so if her position was that the maintenance the husband was paying was insufficient. Again, he said, this was a discussion for another day, at the final hearing.
This case is an important reminder that maintenance pending suit hearings are about ensuring that one party can meet their immediate needs, and that court applications should be used only as a last resort, where the court’s intervention is absolutely necessary, and should not be made for tactical reasons, for example, to try to benchmark a wife’s long term needs. What some lawyers might find troubling about this is that there can be a tendency for judges to assume that if a wife has been managing on a certain amount of money during the proceedings, then there is no reason why she cannot continue to do so in the longer term. Maintenance can get “stuck” at a particular level, particularly if a case goes on for many months (perhaps even years), and it can be easier said than done to persuade judges at a final hearing that the ‘more detailed assessment’ envisaged by Mr Justice Moylan is required.
Reading this case in the same week that we read in the press that Tracey Wright is told by the Court of Appeal that she must go out to work and cannot expect to receive maintenance from her husband beyond his retirement makes one wonder whether some equilibrium is, at long last, being restored to a system which has increasingly seemed to favour wives.
http://www.familylawweek.co.uk/site.aspx?i=ed143385
If you have any queries about this article please contact jonesnickolds on 0203 405 2300 or contact@jonesnickolds.co.uk