31st Mar 2014

There is no presumption of spousal maintenance just because you are caring for young children

Recent case provides reminder on `clear steer’ towards clean break orders

There is no presumption of nominal spousal maintenance when young children of a marriage are primarily living with one parent or the other.

On the contrary, there is a “Clear steer” towards making clean break orders “Wherever possible.”

In the case of Matthews v Matthews [2013] EWCA Civ 1874 a wife and mother of two children aged 3 and 6 appealed a decision to order a clean break with regards to spousal maintenance claims.  Mrs Matthews had wanted there to be a nominal maintenance order at least for as long as the children were dependent.

This is quite a conventional request; the thinking behind it is usually to preserve a form of safety net in case the primary carer finds themself out of work.  A nominal payment can be ordered of, say, £1 or £5 per year.  In reality this small sum is never actually paid.  The purpose of it is to keep open the door for the parent to come back to court and ask for this nominal sum to be increased if the need or opportunity so arose – so that they can take care of themself in order to take care of the child or children.

If the parent needed to make an application for a more meaningful level of spousal maintenance then they would apply for an upward variation of the nominal figure.

Once the spousal maintenance figure reaches zero then the maintenance obligation ceases and it becomes impossible to revive, resurrect or commence a new claim for maintenance.  The result is that there is said to be a clean break between the couple.

The party who would potentially be paying the maintenance has the peace of mind of knowing that he or she can move forward and develop their income position, free from the potential of future claims.

The party who would potentially receive the spousal maintenance has the cold comfort of clarity in knowing just where his or her options for future provision lie.

Mrs Matthews in this case was surprised not to have been granted the safety net of the nominal spousal maintenance.  The young children would be living with her primarily for many years yet to come.

At the time of the judgment she was not in employment but the court found that she had an earning potential of £40,000.  She had worked six out of the preceding twelve months and earned about £23,000 having done so.

The husband was earning about £27,000 per year.  He was ordered to pay children’s maintenance.  There could be no clean break in that regard, only in relation to the wife’s claims for maintenance for herself.

The court of appeal emphasized the clear guidance found in the relevant statutes by referring to s25A of the Matrimonial Causes Act 1973 (as amended) which reads;

“s25A (1) Where on or after the grant of a decree of divorce or nullity of marriage the court decides to exercise its powers under section 23(1)(a), (b) or (c), 24, 24A or 24B above in favour of a party to the marriage, it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable.

(2) Where the court decides in such a case to make a periodical payments … order in favour of a party to the marriage, the court shall in particular consider whether it would be appropriate to require those payments to be made … only for such term as would in the opinion of the court 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 on the other party.”

In summary, there is no presumption that a parent with the primary care of young children will be entitled to nominal spousal maintenance just in case.  Quite the opposite is true. There is a presumption that there will be a clean break order whenever just and reasonable.

Want more information?

If you have any questions relating to what you are entitled to or what you might have to pay with regards to divorce and separation please do get in touch with us, Family Law in Partnership, divorce lawyers in London.  We can give you the expert advice that you need.

You can contact us by email on hello@flip.co.uk or by telephone on 020 7420 5000.  We look forward to being able to help you.