Rupert Chapman

Term orders in spousal maintenance cases

Guidance has been recently given as to the proper approach to the question of whether to make a term order for maintenance or not. In the case of Murphy v Murphy [2014] EWHC 2263 (Fam) Holman J considered a case where the parties had participated in a FDR and had agreed the capital division of their assets as well as child maintenance, in relation to both of which an order had been made, but not the quantum and term of maintenance. The wife was 42 and the husband 35 and were married for only 6 years, with two years of cohabitation. There were 2 children aged 3 ½.

The matter was listed for a final hearing on those issues. Having observed that the position was unusual in having already resolved the capital provision and therefore robbed the court of the power to adjust the same in light of the decision on maintenance, the judge refused to impose a term of maintenance and made a joint lives order.

The wife was a full time carer for the children, having given up her career shortly before they were born. She was to receive all of the equity in the family home, in which she would continue to live with the children.

The court took the view that to seek to put a figure on the wife’s earnings in three years time (the point at which a phased reduction in maintenance proposed by the husband would begin) was ‘totally speculative’. He went on to say that while mindful of the duty to consider a clean break under s. 25A(2), the suggestion that there should be a term order ending the receipt of maintenance when the children reached 18, was inappropriate. The maintenance would then cease when the wife was aged 57, would have limited earning capacity; limited pension and would not receive the state pension until she was 67.

The court considered the judgement of Eleanor King J in L v L [2012] 1 FLR 1283, in which the court reflected on the authority from C v C (Financial Relief: Short Marriage) [1997] 2 FLR 26 in which the Court of Appeal observed that, given the difficulty facing any party seeking to extend a maintenance term, unless the court could be sufficiently certain that the receiving party would be in a position to adjust without undue hardship within the period of the term then a term should not be imposed.

Rupert Chapman

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