Maintenance. How Much?

How much maintenance will I be ordered to pay my former spouse

?How will the court decides this?

This can be an impossible question to answer as there are no firm guidelines. The reason for this stems from the absolute discretion and wide powers given to a judge when deciding ancillary relief claims. It is intended that each case should be decided on its individual facts and merits and that judges should not be subject to the straitjacket of precedent. Judges are encouraged to be imaginative when making ancillary financial orders.

This said however there are some guidelines. In the 2006 case of Miller the House of Lords declared that there were three general principles to reach the objective of a fair settlement between the parties. These were described as firstly the parties relationship generated needs, secondly compensation for relationship generated disadvantage and finally a fair sharing of the financial fruits of the marriage. As to the latter it has been decided that an equal share is the starting point which will only be varied if there is good reason.

The Miller guidelines go someway to deciding the division of capital assets. What the court will do is first determine what matrimonial assets there are and come to a decision on the financial position of each spouse. From the starting point of an equal division of the matrimonial assets, the judge will then decide on the individual shares. The final step for the judge will be to decide whether the division of assets ordered will meet the needs of both parties. It is only if it does not and a clean break does not appear possible that maintenance will come into play and be ordered. And that is where uncertainty as to how much will reign.

The court will be looking for a fair settlement but also one that ensures each party and any children have enough to supply their needs set as close as possible to the standard of living which they enjoyed during the marriage. Available income from all sources including tax credits and benefits will go into the pot. The factors which the court must consider in section 25 (2) of the Matrimonial Causes Act will be related to what is in the pot.

The assessment of needs can only be an exercise in judgement and discretion for the judge. No two cases are ever identical and even if they were there would be no guarantee that two individual judges would come to the same conclusion. What is fairly certain however is that a clean break with no order for ongoing maintenance (or nominal maintenance, or maintenance for a short period) will be ordered whenever possible.

In the 2008 case of VB v JP it was said that; on the exit from the marriage, the partnership ends and in ordinary circumstances a wife has no right or expectation of continuing economic parity (sharing) unless and to the extent that consideration of her needs, or compensation for relationship-generated disadvantage so require. A clean break is to be encouraged wherever possible.

So what has to be accepted is that the legal guidelines are at best imprecise. There are no precedents to follow and each case will depend upon its own facts and quite possibly what the judge had for breakfast on the morning of the trial. Unlike maintenance for children, spousal maintenance does not involve a fixed percentage.

The question for a divorcing spouse is where this leaves him (or her). The answer can only be to make every effort to agree financial matters directly with your spouse and not leave matters to the vagaries of the court system. Only go through the court process if there is no alternative. Instead mediate, negotiate and consider a collaborative law approach.

by: Andrew John

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