Spousal maintenance - part two
In my last article I considered the courts’ approach to the quantum of periodical payments (see  Gazette, 24 May, 16). Recent decisions have seen an increased focus on needs as the prevailing factor when quantifying such payments. In a similar vein, and perhaps reflecting a less generous approach to periodical payments orders, there has been a move towards term orders and away from joint lives orders.
The provisions of section 25A of the Matrimonial Causes Act 1973 are often overlooked. By virtue of section 25A(1), when making a final order, it is the duty of the court to consider whether it would be appropriate to impose a clean break as soon as the court considers it just and reasonable. By virtue of section 25A(2), where the court makes a periodical payments order, the court shall consider whether those payments should be made for a limited term which would be sufficient for the recipient to adjust without undue hardship at the end of that term.
Application of section 25A
The leading authority on the imposition of a term order is C v C (financial relief: short marriage)  2 FLR 26, which has been described as a highly unusual and unique case. The marriage lasted nine-and-a-half months and led to the birth of a child. The husband was ordered to pay periodical payments for joint lives at a high level. Ward LJ stated it was inappropriate to say that, because this was a short marriage, therefore a term must be imposed upon the maintenance. In applying section 25A, the court had to consider whether the wife could adjust to the termination of financial dependence without undue hardship. In considering the question, the court had to look at the effect of the marriage and its breakdown as well as what effect the need to care for any minor children would have on the earning capacity of the wife.
Ward LJ was clear that the court cannot form its opinion that a term is appropriate without supporting evidence. The evidence must justify a reasonable expectation that the wife can and will become self-sufficient. Gazing into a crystal ball does not give rise to such a reasonable expectation, and simple hope that the wife will be able to adjust is not enough.
Ward LJ went on to say that it is necessary for the court to form an opinion not only that the wife will adjust, but also that she will have adjusted within the term fixed. In such circumstances the court may be in a position of such certainty that it can impose a section 28(1A) bar. If, however, there is uncertainty about the appropriate length of the term, the proper course is to impose no term but to place the onus upon the husband to seek a variation in due course pursuant to section 31 MCA 1973.
In L v L  EWHC 2207 (Fam), King J considered an appeal brought by the husband following on from the imposition of a joint lives periodical payments order. She substituted the joint lives order for a term of two years and five months with a section 28(1A) bar. King J held that the district judge had failed specifically to consider section 25A in her judgment, even though statute specifically requires consideration to be given as to whether a term order should be made. This was only a 10-year marriage, the wife was 44, was working and had significant assets of her own. The first instance judge had failed to articulate her reasons for making a joint lives order, although King J felt that this was a case which ‘cried out’ for a term order.
In A v L (departure from equality: needs)  EWHC 3150 (Fam) - a rare instance of a reported case concerning limited means - Moor J considered on appeal an extendable term order that had been made in favour of the wife who was also receiving the lion’s share of the proceeds from the sale of the family home. Moor J was of the view that the district judge should have given clear reasons for the departure from equality because he had not articulated how the capital division would meet the needs of both husband and wife. Furthermore, there was no explanation of the interplay between the division of the capital and the periodical payments order. Moor J therefore ordered an immediate sale of the house with the clean break taking place upon sale of the property as opposed to five years into the future.
These two decisions should perhaps be considered in the context of B v S (Financial Remedy: Marital Property Regime)  EWHC 265 (Fam), which was covered in the last article. If it is indeed the case that periodical payments orders should be quantified by reference to needs as opposed to sharing, and if the court is satisfied that a recipient can adjust to the end of a maintenance term without undue hardship, then perhaps we will see an increase in term maintenance orders, as opposed to joint lives orders, in appropriate cases.
Extension of term orders
A term order for periodical payments made without a section 28(1A) bar can be extended, but only if the application to extend is made before the expiration of the original order - Jones v Jones  2 FCR 201. In Fleming v Fleming  EWCA Civ 1841, the Court of Appeal set a high hurdle for the court to order an extension of a term order. It was held that it would be necessary to show ‘exceptional circumstances’ to justify an extension. The test would suggest that a successful application to extend would be rare indeed.
By contrast however, upon considering Mrs McFarlane’s application to vary in McFarlane v McFarlane  EWHC 891 (Fam), Charles J was of the view that the Fleming test had not survived. He stated that it was appropriate to assess whether the purpose of the original order had been fulfilled. Whether it had or not would be a relevant and decisive factor in the court deciding whether an extension should be granted or refused. In the recent case of N v N  EWCA 940, the Court of Appeal upheld a first instance district judge’s order granting the extension of a term order. No reference was made in the judgment to the test in Fleming.
In L v L, King J said that it was not necessary for her to consider the current state of the law on extendable terms because that was not a suitable case for an extendable term. The uncertainty of the high threshold set by the Court of Appeal in Fleming should however be noted, and practitioners should be cautious in advising clients of the status of extendable term orders.
Andrew Newbury, Pannone