Wednesday, December 17, 2014

SS v NS: The principles on an application for spousal maintenance

Mr Justice Mostyn
SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam) concerned a wife's claim for ancillary relief although, as the citation suggests, the main issue was spousal maintenance. This short post simply sets out the principles applicable to an application for spousal maintenance, as elucidated by Mr Justice Mostyn, rather than dealing with the facts of the case or the order made.

The judgment of Mr Justice Mostyn is interesting in that no fewer than 22 of its 69 paragraphs are taken up by a discussion of the law in relation to spousal maintenance. He brings the threads together in paragraph 46, where he sets out what he considers to be the relevant principles in play on an application for spousal maintenance, as follows:

i) A spousal maintenance award is properly made where the evidence shows that choices made during the marriage have generated hard future needs on the part of the claimant.

ii) An award should only be made by reference to needs, save in a most exceptional case where it can be said that the sharing or compensation principle applies.

iii) Where the needs in question are not causally connected to the marriage the award should generally be aimed at alleviating significant hardship.

iv) In every case the court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable. A term should be considered unless the payee would be unable to adjust without undue hardship to the ending of payments. A degree of (not undue) hardship in making the transition to independence is acceptable.

v) If the choice between an extendable term and a joint lives order is finely balanced the statutory steer should militate in favour of the former.

vi) The marital standard of living is relevant to the quantum of spousal maintenance but is not decisive. That standard should be carefully weighed against the desired objective of eventual independence.

vii) The essential task of the judge is not merely to examine the individual items in the claimant's income budget but also to stand back and to look at the global total and to ask if it represents a fair proportion of the respondent's available income that should go to the support of the claimant.

viii) Where the respondent's income comprises a base salary and a discretionary bonus the claimant's award may be equivalently partitioned, with needs of strict necessity being met from the base salary and additional, discretionary, items being met from the bonus on a capped percentage basis.

ix) There is no criterion of exceptionality on an application to extend a term order. On such an application an examination should to be made of whether the implicit premise of the original order of the ability of the payee to achieve independence had been impossible to achieve and, if so, why.

x) On an application to discharge a joint lives order an examination should be made of the original assumption that it was just too difficult to predict eventual independence.

xi) If the choice between an extendable and a non-extendable term is finely balanced the decision should normally be in favour of the economically weaker party.

As I said above, I will not go into how Mr Justice Mostyn applied those principles to this case. However, I could not leave without mentioning another great Mostyn quote. At the beginning of his judgment he described the wife's income claim as 'speculative, experimental and unfeasible', a 'product of the great bitterness that the wife feels towards the husband' and said that: "Her section 25 statement is a most unhappy document and seems to have been written with a pen dipped in vitriol." Excellent stuff.

No comments:

Post a Comment

Thank you for taking the time to comment on this post. Constructive comments are always welcome, even if they do not coincide with my views! Please note, however, that comments will be removed or not published if I consider that:
* They are not relevant to the subject of this post; or
* They are (or are possibly) defamatory; or
* They breach court reporting rules; or
* They contain derogatory, abusive or threatening language; or
* They contain 'spam' advertisements (including links to any commercial websites).
Please also note that I am unable to give advice.

Note: only a member of this blog may post a comment.