The issue of spousal maintenance (as distinct from child maintenance) has long been debated by family law practitioners and the public alike. We only have to recall the infamous case of Mr and Mrs McFarlane in 2006 which led to Mrs McFarlane being awarded a joint lives maintenance order of £250,000 per year and a press furore.
The level and term of any maintenance will depend on the financially superior party’s income but also, importantly, on the other party’s income and potential earning capacity moving forward.
There is often a significant dispute about earning capacity. For example, in a case where one party has given up work to look after the children at what stage should they be expected to go back? Perhaps once the children are in secondary education, earlier, later, not at all? What happens in school holidays? What type of work can be undertaken? Will training be necessary? How long will that take?
The court can either choose to impose a specific term for the maintenance to be paid taking into account the answers to the above questions or it can make what is known as a “joint lives” order (as it did in McFarlane). Joint lives maintenance is maintenance which will last until the death of either party, the re-marriage of the payee or further order of the court.
Issues about the term of maintenance arose in the recent case of Murphy v Murphy  EWHC 2263 (Fam).
In this case the wife was 42 and the husband 35. They had had a relationship of about 8 years. Up until the children were conceived the wife worked and received a salary of about £30,000 per annum. The parties had twins both aged 3 and a half at the time that the case was heard and the wife had stopped working after they were born.
The wife indicated that she wished to embark on teacher training as soon as she could but she was still engaged in full time child care.
Unusually the parties in this case had already agreed the division of the capital and the level of initial maintenance and the only questions which the court was asked to decide on were i) whether there should be a step down in the level maintenance at some stage and ii) whether the maintenance should be the subject of some ultimate term (as opposed to being for joint lives).
The Judge did point out in making his decision that often what happens is that there is some capital adjustment or provision to reflect or compensate for a subsequent cessation or reduction in level of maintenance but there was no power left for him to do this as they had agreed matters in terms of the capital.
In the circumstances he made an order on a joint lives basis. He was particularly mindful of Section 25A (2) Matrimonial Causes Act 1973 which states that when the court decides on a periodical payments order it must consider whether it would be appropriate for payments to be paid for such term which would be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence.
In this case it must be assumed that the judge did not feel comfortable that the wife would be able to adjust as such if he imposed a specific term. Many people may feel this is unfair on the husband and I would venture that there may be judges who agree and would perhaps have come to a slightly different conclusion. It would be, of course, open to the husband to come back in the future to vary the maintenance downwards or apply for that maintenance to cease if circumstances change.
The level of discretion which our law affords in this area is arguably advantageous because it allows judges the flexibility to deal with the many different circumstances and situations which come before the court, however, it does make it that much more difficult for parties to settle matters (and for family lawyers to advise) in circumstances where the outcome which both parties seek is a realistic possibility and the matter will fall on the views of one particular judge on one particular day. Perhaps that is the nature of the beast with litigation?