When is a term order appropriate?
Under the Matrimonial Causes Act 1973, the court has the power to make an order that one party pays the other maintenance on divorce. This might be appropriate where one party has a lower income than the other. The court has the power to make orders that last for ‘joint lives’ (i.e. until death, remarriage, or further order of the court) or for a fixed term. In certain circumstances, the court might impose a ‘s.28(1A) bar’, which prevents the payee from applying to extend the term order.
In the recent High Court case of Murphy v Murphy [2014] EWHC 2263, Mr Justice Holman considered whether it was appropriate to impose a term order in a case where the husband (H), aged 35, earned a good salary working for Apple, and his wife (W), aged 42, cared for the parties’ 3 year old twins. Until the birth of the twins, W worked as a website trading manager for Selfridges, earning £30,000.
The parties had agreed that as part of the settlement on divorce, H should pay W £31,000 spousal maintenance per annum, but whereas W said the order should be on-going (i.e. for joint lives), H said the order should reduce after 3 years to £12,000 per annum, then stop altogether when twins were 18. H argued that the ‘step down’ in 3 years time was appropriate because by then, W should be back at work earning £25,000 – £30,000.
The Judge was not convinced by H’s ‘step down’ argument and found for W. Although he agreed that before the birth of the twins, W had a good working history and CV, he said it was “highly speculative and probably not realistic” to expect her to achieve the same sort of salary now that she had the twins to care for. Previously, she had worked 5 days a week in central London, often working until 7 or 8pm. This, the Judge said, would no longer be practicable without W having to pay substantial sums for a nanny. Whilst the Judge agreed with H that W had an earning capacity (indeed, she herself said she hoped and intended to return to work part time when the twins started school), he said it was not possible to predict whether any salary she might earn would be sufficient to justify a step down in her maintenance. It was always open to H, he said, to seek a downward variation in W’s maintenance at a later stage.
As for H’s argument that the order should be for a fixed term, H relied on the fact the marriage had been a short one of 6 years. He also referred the Judge to the case of L v L [2012] 1 FLR 1283, a similar case, he said, where the court had made a term order. However, the Judge was not persuaded. The facts of L v L, he said, were very different: the wife in that case had substantial capital, she had never left the work place and she had an excellent reputation in her field of work. Unlike W in this case, therefore, she could expect to earn a substantial income. Nor was the Judge persuaded by H’s short marriage argument. He said: “The having of children… and their obvious dependence on the wife, in this particular case, changes everything. The economic impact on this wife is likely to endure not only until the children leave school, but, indeed, for the rest of her life”. On this basis, the Judge ordered that H pay maintenance to W on a joint lives basis.
In recent years, there has been a gradual shift away from joint lives maintenance orders. The courts appear to have become less paternalistic and more in favour of wives achieving independence post-divorce. However, this case shows that the court will still make a joint lives order in certain circumstances, namely where having children has a considerable impact on a wife’s earning capacity, where the husband has a good earning capacity, and, significantly, where the wife does not have substantial capital to fall back on.
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