Until 10 years ago, it was common for a spouse, usually the wife, to receive a “joint lives” maintenance order on reaching a final financial agreement on divorce. This meant that maintenance would be paid until the death of either spouse, or a further order of the Court.
With virtually no such orders now being made (as they are regarded as outdated), those former spouses who still have joint lives orders in place are now often approaching retirement, or have retired, with there being a subsequent reduction in available income, and so are having to deal with each other, once again, even though they may have divorced many years ago.
In the recent judgment in the Central Family Court of WK v GC [2023] EWFC 151, His Honour Judge Hess considered just such a “joint lives” maintenance order, made at the conclusion of a final hearing in 2004.
At the time that the original order was made, the parties had been married for twelve years and had three young children. The wife had given up work to be a homemaker and raise the children and she had no independent income. In contrast, the husband was pursuing a successful career in investment finance. The 2004 court order had divided the parties’ capital assets and made a joint lives maintenance order, which was not linked to the Retail Prices Index or the Consumer Prices Index, so the amount payable remained the same between 2004 and 2023 with no adjustment for inflation. No pension sharing order was made, and so while the wife received over half the realisable capital assets, the husband, taking into account pension assets, received 61% of the overall assets.
The wife applied to vary the spousal maintenance upwards as she was struggling to make ends meet. She was also asking the court to “capitalise” her maintenance i.e. to pay it to her in one lump sum rather than monthly over time. The husband cross-applied to vary the maintenance downwards or to dismiss it altogether as he had now retired and his income was lower.
In considering whether to vary the original maintenance order, His Honour Judge Hess set out that he had the power to make a capital order, a property adjustment order (so changing the ownership of property), or a pension sharing order, instead of continuing the maintenance. However, those powers could not be used by him to reopen capital claims as such, and any capital payment, pension share or property transfer had to be linked to the amount needed to capitalise the maintenance, i.e. to buy off the maintenance claim in one lump sum payment.
The Judge was also clear that on a variation application, his assessment was based on the parties’ needs and he determined the wife’s needs to be £50,000 per annum. The burden was on the ex-spouse receiving the maintenance to justify the need for continuing the financial provision, whether through income or capital, given that the court has the duty to move the parties towards a clean break, and ending all their financial ties, so long as there is not “undue hardship” in adjusting.
The Judge also considered whether the wife should have to use her own capital (a mixture of money she received from the divorce settlement and from inheritance) to meet her income needs. In this regard, the court has a wide discretion. There is no definitive guidance on this, save that the court should promote fairness, and that included considering if either spouse’s capital could be used to produce an income for them and also if they should use the capital itself to meet their outgoings. Here the judge found that the wife could be ascribed an income of £18,000 per annum gross from her own investments.
In this case the Judge considered carefully both parties’ income and earning capacity. The husband had remarried, to a wealthy wife, and lived well, having retired (while his second wife still worked) without financial concerns. The wife had not sought any particular employment since the parties’ marriage had broken down, having cared for their children, and then worked part-time in a charity shop on a voluntary basis. The Judge assigned the wife an earning capacity of £10,000 gross per annum for next six or seven years (she was aged 60 at the time of the hearing). It would be a matter for her whether or not she sought employment but the Judge found that she could meet her own needs to this extent.
The judge therefore believed that the wife’s needs were £50,000 per annum. In considering the wife’s income needs, he took into account the husband’s own level of expenditure, the standard of living the parties had enjoyed when they were together, the duration of their marriage and the duration of the wife’s obligations to the children arising from that. The judge found that she could generate £25,000 of this herself leaving a shortfall to be met by the husband of £25,000 per annum net.
He also looked carefully at housing, and whether the former wife could release capital by downsizing and moving to a smaller property. He noted that the original judge had not made any reference to expecting her to downsize at any stage, and, comparing her housing to the husband’s, which was worth more, held that she should not have to move house.
There was also the potential for the wife to inherit from her mother, who was 94, albeit presently in good health. The Judge decided not to include any future inheritance in the mathematical calculations, given the uncertainty.
The Judge determined that the way forward would be for the wife’s income needs to be capitalised into a single payment to be made by the husband. This could either be done by way of a pension sharing order or a lump sum. The Judge ordered a lump sum of £314,500, following which the obligation to pay the wife’s maintenance would come to an end (a “clean break“). The husband also had to pay £15,000 towards the wife’s costs, having made a lower offer than that ordered, which he had then withdrawn before the final hearing.
What then if you have a joint lives order? The starting point is to look at what income and capital you have, what income you can make, whether from employment or capital, and if there is sufficient income available to meet your outgoings going forward. Whilst every case is determined on its own facts, but His Honour Judge Hess setting out the legal principles and the numerous factors weighed up with clarity in this case, seeking to do fairness between parties who he described as “sensible and pleasant people”, but despite which description still needed the Court to disentangle their finances (once more) in the end.
Simon Beccle and Charlotte Skea-Strachan acted for the wife in this case.
If you would like to contact Simon or Charlotte at Payne Hicks Beach, you can do so by sending an email to them at sbeccle@phb.co.uk and cskea-strachan@phb.co.uk
To visit Simon’s profile on the website, click on the following link https://www.phb.co.uk/profile/simon-beccle/
To visit Charlotte’s profile on the website, click on the following link https://www.phb.co.uk/profile/charlotte-skea-strachan/
