Maintenance how long 1
Within the Matrimonial Causes Act there are several things which will cause a maintenance order to come to an end anyway:
(a) The death of either party; or,
(b) The remarriage of the receiving party.
This is one of the reasons why very often the Wife in a divorce will prefer to have more of the money now and to not have any maintenance. In that way she can be certain of getting the money. She does not have to worry about her Husband dying or losing his job for example. She is also able to consider getting married again without losing any money.
In addition to this the court can make a number of different orders in relation to how long the maintenance should last:
• A joint lives maintenance order;
• A “term order”, e.g. maintenance for 5 years; or,
• A “term order” with a “bar” (see below).
Joint lives maintenance
Joint lives maintenance means that e.g. the Husband must continue to pay the maintenance until either he dies or the Wife dies.
Whether the court would order joint lives maintenance or maintenance for a shorter time will depend upon the facts of the case. The court will consider the factors in section 25 of The Matrimonial Causes Act 1973. For example:
It will be relevant if the receiving party e.g. the Wife, has an earning capacity. If for example the Wife is 35, and the children are now all at school and the Wife has an established track record of e.g. secretarial work, it may be reasonable to expect that she will get back into the job market and thus increase her income.
If the parties are quite young, e.g. in their 30s, it might suggest a joint lives order would be less appropriate. With 30 years until retirement age, the Wife might be expected to adjust to independence during that time.
Duration of the marriage
A short marriage is much less likely to result in a court making a joint lives maintenance order than a long marriage. How long is a short marriage? There is no easy answer. On one view anything less than 5 years might be seen as a short marriage. It is worth however, bearing in mind 2 features on this point:
(a) When a court is assessing the length of a marriage it will take into account any period of cohabitation (living together) the parties had before they were married. So if 2 people cohabit for 10 years and they get married but break up a year later; a court is likely to treat their marriage as an 11 year marriage or relationship.
(b) The second point is that the length of the marriage is likely to be of less importance where there are children involved. If 2 people have been married for only 3 or 4 years the Husband might want to say that therefore this is a short marriage and therefore there should not be a long-term order for maintenance. On the other hand if the parties have 2 children who are 2 and 3, and the Wife has never worked and is looking after the children, the court may well take the view that she needs long-term support from the Husband.
Physical or mental disability
This factor will be tied into the question of earning capacity. It may be that the Husband has a medical condition and has a medical report which states that it is very unlikely he will be able to continue in his work beyond e.g. the age of 50. If that is the case it might make a joint lives order less likely. On the other side the Wife might have a disability which means she will be unable to work.
A term order for maintenance will be expressed as ending on a particular date or event. For example it might be calculated to end when the youngest child of the family reaches the age of 18. Alternatively it might be based on when the youngest child finishes a certain stage of their education.
It is possible to build in a “step-down” at a certain point. For example a court could order that there should be maintenance of £1,000 per month for 5 years and then a further 5 years at £500 per month.
From the Husband’s point of view, the thing to bear in mind about a term order is that it is variable. In other words, a term order does not give the Husband the certainty he might like. If the order is for say, 5 years at £1,000 per month, the Wife could come back to court at any time during the 5 years and ask for the order to be varied. She could ask for the 5 year term to be extended. She could also ask for the £1,000 per month to be increased. For this reason a Husband is likely to ask a court which orders term maintenance to impose a “bar” (see below).
Term order with a bar
Sometimes the Husband will be prepared to pay maintenance for a term e.g. 5 years, but will want to be certain that the Wife will not come back to court to increase the term of the order e.g. increase it to 10 years.
Under section 28(1A) of the Matrimonial Causes Act 1973 the court can impose a “bar”, that is an order that the Wife shall not be entitled to apply for the term to be extended.
Again, how likely this is to happen depends on the facts of the case. If there are young children it may make the imposition of a bar less likely.
On the other hand, it is common when considering cases for judges to say: “I think there should be some maintenance, perhaps in the short term, but on the other hand I think the Husband ought to have some certainty to be able to go and earn some money after that, so there should be a bar.”
One point to consider is the effect of inflation. Where an order is for a long time, e.g. a term order for 10 years or more, it may be wise for the Wife to seek an order that the amount of maintenance is increased for inflation at regular intervals.