SS v NS

The case of SS v NS is a recent judgment from Mr Justice Mostyn which shows the changing approach of the courts to spousal maintenance. The husband and wife were 40 and 39 respectively, and had been together for 11 years. The husband worked in banking. Though he was very successful, he was reducing his work load due to ongoing health concerns. The wife had not worked since the birth of the first child, but had taken on part-time work during the course of proceedings.

The judge considered the legal and ethical basis for spousal maintenance, and summarized the case law to-date. He found that an order for maintenance could only be made where there were income needs to be met and should be focused on facilitating the transition to independent living.

The judge put forward 11 principles which decisions relating to the provision of maintenance should address, including when it would be appropriate for there to be a “clean break” (i.e. a maintenance order coming to an end). These are:

1. An application is more likely to be successful where it can be evidenced that decisions and choices made during the marriage have led to future needs of the recipient, such as the length of the marriage and the existence of children.

2. Consideration of a clean break must be made and therefore an award should only be made by reference to needs even when the ‘sharing’ or ‘compensation’ principles apply.

3. Very rarely will an order be made for spousal maintenance where the need itself is not connected to the marriage, though this might include an order to alleviate significant hardship.

4. In every case the court must consider ending spousal maintenance with a transition to independence as soon as it is just and reasonable, even if there may be a degree of minor hardships in the transition period.

5. The starting point should be a presumption that the length of the payment term can be extended, unless a joint lives order can be significantly justified.

6. The length of the marriage and standard of living is relevant but is not decisive.

7. A judge examining the needs for the recipient should not only look at their suggested budget but should stand back and look at the global total, to see if the sum requested represents a fair proportion of the payer’s available income.

8. Where the income of the payer is comprised of a basic salary and a discretionary bonus, the award may be split between the two with the more substantive needs being met from salary and discretionary items over and above such needs from bonus payments, usually expressed as a percentage with a cap.

9. Where there is an application to extend the term for payment an assessment will be required whether, at the time the original order was made, there was an expectation of the ability of the payee achieving independence, and if so why.
10. On an application to discharge a joint lives order, the court should look at any original assumption that it was too difficult to predict eventual independence.
11. If the choice between an extendable and a non-extendable term is finely balanced, a decision should normally be made in favour of the economically weaker party.