Joint Lives’ Maintenance Orders – Two Sides to the Tale

2nd March 2020
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What is a Joint Lives’ Maintenance Order as opposed to a Fixed Term Order?

A joint lives’ maintenance order is an obligation to pay maintenance which will continue until the recipient remarries, the payer or payee dies, or the Court makes a further order.

A fixed term order allows for maintenance to be paid for a specific length of time, sometimes reducing year on year over that period, with the aim of achieving financial independence for both parties at the end of the term.

Advantages of a Joint Lives’ Maintenance Order

Historically, judges were often reluctant to make fixed term orders because they didn’t want to “crystal ball gaze” i.e. try to predict when the recipient of maintenance would be able to adjust, without undue financial hardship, to the end of financial support from the former spouse. Therefore, joint lives’ maintenance orders were often made in favour of the financially weaker spouse.

Clearly, the advantage to the recipient of a joint lives’ order, is that they have the security of knowing what money will be at their disposal on a monthly/annual basis and they can tailor their outgoings accordingly.

Disadvantages of a Joint Lives’ Maintenance Order

From the payer’s perspective, this is the most onerous of maintenance orders. If the payer wishes to end the obligation to pay or vary the amount payable, they must either reach an agreement with the recipient, or apply to the Court to vary it.

Invariably, the higher earning party will feel that a joint lives’ order leaves the recipient with little incentive to reduce their dependency. They may feel that it is unfair that a former spouse is able to enjoy the benefits of their hard work and future endeavours whilst making no effort to become financially independent.

Recent Opinion

The case of Wright v Wright [2015] EWCA Civ 201 generated a huge amount of press attention with claims that it signalled the end of joint lives’ maintenance orders. The facts of the case were that a joint lives’ maintenance order had been made in 2008, but in 2012 Mr Wright applied to vary the spousal maintenance downwards due to a decline in his income and the fact that he was close to retirement. Mrs Wright had not attempted to find work or update her skills and the judge found that whilst it would not be appropriate to terminate the maintenance payments immediately, it would be appropriate to reduce the payments over a period of five years until 2019 when it would be terminated, i.e. the Joint Lives’ Maintenance Order became a Fixed Term Maintenance Order.

Mrs Wright sought permission to appeal but permission was refused. The judge had been critical of Mrs Wight’s failure to attempt to gain employment and concluded that by the time Mr Wright retired, he should no longer have to pay spousal maintenance.

In the high net worth case of Waggott v Waggott [2018] EWCA Civ 727, Mrs Waggott had previously been awarded a settlement of £9.76 million including pension, plus £175,000 per year in maintenance by way of a joint lives’ order. However, she appealed to vary the order asking for an increase in maintenance payments of £23,000 per year. Mr Waggott cross-appealed with regards to the term and amount of maintenance and was successful. The Court of Appeal ordered a three-year non-extendable term instead.

In April 2019, Lady Hale, then President of the Supreme Court gave a speech to Resolution (an association of Family lawyers), in which she said that she saw the goal of divorce settlements as being “to give each party an equal start on the road to independent living.” However, she went on to say that sometimes, in order to provide “an element of compensation for the disadvantage, often permanent disadvantage, resulting from the choices made by both parties during the marriage,” open-ended periodical payments may be necessary. For example, in a marriage where one party has given up work to concentrate on raising children, they may never make up what they have lost, and will require long-term financial support.

Conclusion

What then does this mean for the future of joint lives’ maintenance orders? Whilst it seems that the courts may be moving away from them towards fixed term orders should an immediate clean break not be possible, it is worth remembering that each case will turn on its own facts, and that spousal maintenance will ultimately be assessed by reference to the parties’ needs which trump all other factors. It is unlikely that a spouse will be the recipient of a joint lives’ maintenance order if they are able to work and meet their own needs.

It is important for clients to bear in mind that going to court can be somewhat of a lottery. Judges have a wide discretion in the Family Court, so if possible, it is worthwhile trying to negotiate a financial settlement that both parties can live with, to avoid a judge imposing a decision on them.

If you are considering issuing financial remedy proceedings and wish to seek advice regarding the process, the highly experienced family law solicitors at Dean Wilson are well-equipped to assist you.

To contact the Family Team at Dean Wilson LLP call 01273 249221, or email lr@deanwilson.co.uk