The Times reports today that Julia McFarlane has succeeded in her application for an upward variation of her maintenance, which has been increased from £250,000 a year to £350,000 a year. The reason for the variation was that since the original order was made in 2006 her ex-husband's net income had increased, from £750,000 to £1.1 million.

I've not read the judgment here (I don't believe it has yet been published), but nevertheless I'm still going to make some comment. The case, of course, resurrects the issue of the role of periodical payments, as mentioned by Lord Nicholls in the House of Lords judgment. To recap, Mrs McFarlane had given up a successful career to bring up the family. It was considered that there was insufficient capital to achieve an immediate clean break, but the husband's annual income was far in excess of the financial needs of both parties, even after they had separated. Further, it was considered that the high level of the husband's earnings after the breakdown of the marriage was the result of the parties' joint endeavours at the earlier stages of his professional career. Accordingly, Mrs McFarlane was awarded maintenance substantially in excess of her needs, by way of "compensation in respect of the significant future economic disparity, sustained by the wife, arising from the way the parties conducted their marriage".

This latest judgment pours salt onto Mr McFarlane's wounds. It seems from the report in The Times that Mrs McFarlane is now resurrecting her career in the law, but that Mr McFarlane believes that she could easily earn more. However, the obvious point is that she hardly has any incentive to do so. Further, as the report suggests, Mr McFarlane may consider that it is not worth his while continuing with his career.

Whilst I certainly agree with the objective of achieving fairness, I am still uneasy about all of this. The primary object of maintenance is to meet needs, but where the maintenance award is in excess of needs then the balance above needs is effectively capital. To now award Mrs McFarlane another £100,000 a year capital is giving her a 'second bite' at the capital cherry, something that is specifically precluded by the system.

UPDATE: The report has now been published, here.