The issue for many judges is the period over which the standard of living is to be maintained.
Of all the section 25(2) factors (Matrimonial Causes Act 1973), it is needs rather than the standard of living enjoyed during the marriage that has generated the most debate in recent case law, particularly in the context of fixing a periodical payments award.
The recent decision of Mr Justice Moylan in BD v FD  EWHC (Family) 594 provides an overview of the relevance of the marital standard of living.
In the earlier decision of SS v NS  EWHC 4183 (Fam), Mostyn J provided a comprehensive review of the applicable principles relating to periodical payments awards. On the question of the marital standard of living, Mostyn J stated that it is ‘relevant to the quantum of spousal maintenance, but it is not decisive. That standard should be carefully weighed against the desired objective of eventual independence’. He went on to say that ‘it is a mistake to regard the marital standard of living as the lodestar. As time passes how the parties lived in the marriage becomes increasingly irrelevant. And too much emphasis on it imperils the prospects of eventual independence’.
Moylan J’s view was that the starting point for the assessment of needs is the standard of living during the course of the marriage. This reflected the view expressed by the Law Commission in its 2014 report Matrimonial Property, Needs and Agreements (Law Com. No 343). The commission opined that in very wealthy cases, ‘needs are still assessed primarily by reference to the marital standard of living’. Moylan J clarified that the standard of living is neither a ceiling nor a floor, but rather it provides a benchmark or starting point against which to assess needs.
As Baroness Hale stated in Miller; McFarlane  2 AC 618, in most cases the court is trying to ensure that each party and their children have enough to meet their needs, set at a level as close as possible to the standard of living enjoyed during the marriage.
Moylan J recognised that in most cases, however, due to limited resources, it will not be possible for the marital standard of living to be maintained. Additionally, it may not be fair for a spouse to have their needs provided for at the marital standard of living level either at all, or for longer than a fixed period (for example due to the length of the marriage).
The issue for many judges therefore is the period over which that standard of living is to be maintained. As Sir Hugh Bennett said in McCartney v Mills McCartney  EWCA Civ 984, after a short marriage to a very wealthy man, a wife should not expect to continue to live at the same rate in the future. In BD v FD, Moylan J acknowledged that ‘the use of the standard of living as the benchmark emphatically does not mean that… in every case needs are to be met at that level either at all or for more than a defined period’. The appropriateness of this transition to independence was acknowledged by Baroness Hale in Miller; McFarlane, where she stated that the financial provision should enable a gentle transition from the marital standard of living to the standard that the wife could expect as a self-sufficient woman.
Subject to the resources being available, Moylan J stated that the level at which the applicant’s future needs are assessed will depend upon the duration of the period over which they are being met. It follows that the longer the period, the more likely that the court will not assess the needs at the marital standard of living throughout the entire period. Moylan J acknowledged that there are many examples of orders where an award had been based upon needs, but with the needs reducing in the future.
Where the resources are available and where, as in the present case of BD v FD, it is a long marriage and contributions to the welfare of the family both pre-date the marriage and post-date the end of the marriage (such as ongoing care of children), the court is more likely to decide that the applicant’s needs will be assessed on a lifetime basis at a level which is similar to the standard of living during the marriage.
Moylan J acknowledged that there may be cases where the benchmark of the marital standard of living is not to be applied. In such cases, specific justification to depart from the benchmark would be required. He cites the example of B v B (Ancillary Relief: Post-Separation Income)  2 FLR 1214, where the marital standard of living had not adjusted to the dramatic increase in the husband’s earned income in the later years of the marriage. Moylan J, however, emphasised that was not introducing an element of sharing, but rather the assessment of needs has to take into account the available resources.
In BD v FD, the wife asserted that the assessment of her needs should not be viewed through the prism of spending during the marriage. Her contention was that the husband was mean, thereby reducing the marital standard of living to a level far below what was appropriate when looking at the available resources. Moylan J expressed the view that an allegation that a party was mean and unreasonably restricted family expenditure is an allegation of conduct under section 25(2)(g). In essence, it is the opposite of an allegation that one spouse was profligate, which may lead to arguments for add-backs. Add-back arguments also fall under the umbrella of conduct as Moylan J established in Evans v Evans  EWHC 606 (Fam).
A final point of note in Moylan J’s decision is that the wife’s award was based upon an assessment of her needs, as opposed to the application of the sharing principle. Where an award is based upon needs, he saw no reason to look at the proposed award in percentage terms of the assets overall. Such an approach would demonstrate nothing of relevance to the discretionary exercise and Moylan J saw no correlation with the potential fairness of an award by undertaking such an exercise.
Andrew Newbury, Slater and Gordon