A High Bar to Lifetime Maintenance Orders

A High Bar to Lifetime Maintenance Orders

A lifetime maintenance order does what it says on the tin – it is an order that one spouse receive maintenance from the other for the remainder of her (or sometimes his) life, in effect one that is unlimited.  The question is, how easy is it to obtain a lifetime maintenance order today?

Any wife coming before the court today seeking a maintenance order for the rest of her life has a high hurdle to overcome.  These orders are much harder to achieve than say 10 years ago for a number of reasons:

  • There is a greater expectation that a wife will work, or if she is already working, increase her hours to a full time basis at some point even before any children complete their education.
  • There may have been a significant adjustment in the sharing of the capital assets often to reflect an inequality in borrowing ability along with the need for both parties to have similar standard of housing, which depresses either the amount or length of time for which the wife can hope to receive support.
  • If pensions have been shared, it is common to see the maintenance order end, at the latest, on the retirement of the paying party, as otherwise the wife is being given income from an asset which has already been divided.

It is worth pointing out that it has never been the law that a wife should or would receive an equal share of her husband’s income on divorce.  Maintenance orders are about meeting the needs of the recipient spouse so the burden is on her to draw up her budget to put hard figures on her needs, and also take into account any money she can generate to set against that budget.

It is not the case that one can be wholly creative with the budget sought, to take reasonable needs up to more of an ‘equal share’.  In a recent case (BD v FD), the wife put in a budget that was more than double what the family had spent each year as a whole during the marriage.  The Judge therefore used the husband’s evidence of the level of family expenditure when arriving at the appropriate figure for the wife’s needs.

Existing Lifetime Maintenance Orders

Then there is the question of existing lifetime maintenance orders – are they secure?  They may not be.

With the move away from such orders being granted, it is easier than it was for the paying former husband to ask the court to put an end point on what was previously an unlimited order.  He may be able to point to a decrease in his income as the years advance, through changes to or loss of his employment.  He may be able to establish that the wife is able to replace the maintenance through her own income, that of a partner or from other money that has come her way, say by inheritance.  He may be able to show that she could replace the income if only she took appropriate steps to do so and it is that change of approach that may make recipient wives more vulnerable.

However, every case turns on its own facts and any person seeking to alter an existing maintenance order should seek expert legal advice.  Sometimes there is specific provision within the order itself that will make it more difficult to succeed in a downward or upward variation, so the first place to start is always consideration of the existing maintenance order in full. 

Effect of Remarriage

Any lifetime maintenance order is always subject to termination on the remarriage of the receiving spouse and always capable of variation downwards (or even termination) on a change of circumstances of the paying or receiving party.  This is part and parcel of any maintenance order and so even before the shift in the courts approach to such orders in recent years, no lifetime maintenance order was a failsafe guarantee of an income for life.