AJC v PJP: When should a nominal spousal maintenance order be activated?

Image: Public Domain, via Piqsels

Ah, the nominal spouse maintenance order. I may have ceased practising nearly twelve years ago, but I remember it well. It was certainly a common feature in financial orders, including consent orders, in my neck of the woods.

Whilst I am ancient enough to have been practising in pre-child support days, I don't recall how common nominal maintenance orders were then. My (later) view on them was always that they were a way for the court to retain some measure of control over the issue of maintenance, the Child Support Act having taken away the power in most cases to make child maintenance orders. 

Whatever, I don't recall a nominal order ever being 'triggered', and varied into a substantive order. And I was very interested to see that Deputy District Judge David Hodson no less (who back in the day was responsible for a considerable proportion of my CPD) reports a similar experience in his judgment in AJC v PJP.

As Judge Hodson suggests, it is about time the whole issue of nominal spousal maintenance orders, which he says appear to be mainly limited to the courts of London and the south-east, was properly examined. In particular, what changes in circumstances are sufficient to warrant them being triggered? As Judge Hodson says, there is very little guidance in the case law.

But such an examination is of course is for another time.

Meanwhile, what was the circumstance that the (former) wife (it is always the wife) in AJC v PJP argued should trigger a variation of her nominal order? It was the financial impact of lockdown.

Briefly, the nominal order had been made by consent in November 2012. At that time the two children of the family were living primarily with the wife (mother), although since 2015 their time has been shared relatively equally between both parents.

The wife is an airline pilot. Her employment came to an end when the pandemic struck. She hopes to find employment again when the pandemic is over, but meanwhile her income comprises universal credit, child benefit and child support, totalling about £2000 per month, of which £900 is child support. She sought an upward variation of the nominal maintenance to about £2000 a month on top of the child support, but as Judge Hodson pointed out, this may just be interim provision, until she finds another job.

The wife argued that her application should be treated as if it was an ordinary variation application. Judge Hodson disagreed. Whereas with an 'ordinary' maintenance order both parties are aware that any change in circumstances may trigger a review. But with a nominal order, the change in circumstances has to be significant - something that the parties do not necessarily expect to happen. As a result, the paying party does not budget for it.

Having considered what meagre judicial guidance is available on the subject of nominal orders, Judge Hodson came to the conclusion that it was not appropriate in this case to convert the nominal order into a substantive order. He said:

"Misfortune or unexpected developments in life is the nature of life.  Life never goes according to plan.  Sometimes those misfortunes or unexpected developments arise from, compounded or accentuated from, the foundation or circumstance of a past relationship.  I could see why in those circumstances there might be a justification for a nominal order being made into a substantive order.  I think that debate needs to be had.  But it’s a debate and especially in the context of the 1984 encouragement of clean breaks.  However where misfortune or unexpected developments have absolutely nothing to do with having been in a married relationship a decade earlier then in my assessment it is in 2021 no longer part of the policy and practice of our family law that one spouse should be responsible for the other.

"Losing a job through the consequences of the virus when one had a job at the time of settlement a decade earlier cannot be ascribed to relationship generated disadvantage or even a loose causal connection.  As again to create a nuance, there might be an argument if the work position of the receiving party is significantly disadvantaged through the relationship particularly if relatively recently after the end of that relationship and so at higher risk of losing work, and again I can see a debate on this.  But not as I have set out in the first sentence above.  And that is the situation here.  This court is of course sorry to hear of the circumstances of the former wife as it is of everyone who is in financial difficulties as a consequence of this most appalling development in the life of our planet.  It is of all events thoroughly unexpected.  However a nominal spousal maintenance order made almost a decade earlier is not the basis for coming back to court to ask for a short-term financial support provision from the paying party who has not paid anything over that period and is quite probably himself facing his own financial difficulties in his line of business [he works in car sales]."

Accordingly, the wife's application was dismissed, although Judge Hodson declined an invitation to dismiss the spousal maintenance order altogether.