Rethinking spousal maintenance: Should maintenance orders have an expiry date?

The Law Commission's recent scoping report on divorce and dissolution has stirred up some interesting discussions about the need for reform in financial remedies. One hot topic is spousal maintenance and whether there should be a time limit on how long someone has to pay maintenance to their ex-spouse.

What is spousal maintenance?

Spousal maintenance is basically financial support paid to a former spouse to supplement their income upon divorce. It's usually made by way of regular monthly payments (although these may be capitalised as a lump sum) and can be ordered alongside other property or financial provisions.

The idea is to help cover an income shortfall one spouse might have following separation of the marital finances, to enable that spouse to afford their usual outgoings. It's especially common if there's a big disparity in earning capacity between the parties.

Courts are currently required to consider a ‘clean break’ between the parties where possible, ie. no ongoing maintenance liability. When payments are required, the court should order these to only last long enough for the recipient to adjust to independence from their ex’s financial support without undue hardship.

However, under the Matrimonial Causes Act 1973, the court currently has wide discretion in awarding spousal maintenance, including how much and for how long these payments should last.

The Fair Shares Report, published earlier by the Nuffield Foundation, highlighted that of those surveyed most maintenance arrangements were time-limited - 76% linked to a triggering future event (such as a child reaching a certain age) but only 20% being for a fixed number of years. Despite this, the Law Commission discuss whether the introduction of a maximum term for spousal maintenance should be implemented in all cases except those of serious financial hardship.

The pros and cons

Right now, as this is just a scoping report, it's up to the Government to decide the next steps. Whilst this is being considered, let us weigh some of the arguments for and against setting a time limit on spousal maintenance.

Arguments for:

• Encouraging financial independence: Supporters of the introduction of a time limit state that it could push the recipient to become financially independent, reducing long-term dependency on their ex.
• Reducing legal uncertainty: Clear guidelines on the duration of maintenance could cut down disputes and legal costs, making outcomes more predictable for divorcing couples.
• Preventing exploitation: Despite research showing that whole-life maintenance orders (or “joint lives” orders) are extremely uncommon, supporters state that time limits could prevent scenarios where recipients rely indefinitely on maintenance payments despite being capable of supporting themselves.

Arguments against:

• Impact on vulnerable spouses: A strict time limit might adversely affect spouses who are unable to reasonably achieve financial independence due to age, health issues, or ongoing caregiving responsibilities which is commonly a reason for spousal maintenance to be necessary.
• Flexibility for fair outcomes: The current discretionary system allows the court to tailor maintenance orders to the specific circumstances of each case, which might be lost or hindered with rigid time limits.
• Potential hardship: Fixed limits could lead to financial hardship for recipients who cannot become self-sufficient within the prescribed period, and this could result in them being forced to rely on benefits and government support. Due to this, some have stated that reform is impossible in the current climate without improvement to government support services including how child maintenance is dealt with.

Judicial discretion

Although the current system's flexibility allows for tailored solutions, it can also lead to unpredictability and prolonged disputes. Introducing a time limit could streamline the process and reduce conflicts, but it must be carefully designed to protect vulnerable individuals and ensure fair outcomes.

The report found that even where stakeholders supported some time limit on maintenance orders, many supported retaining some discretion, depending on the circumstances. This is a crucial point - it could be drastically unfair to impose the same rigid time limit on a spouse after a short marriage, for example, as compared to a long marriage having sacrificed earning potential to look after the family.

Conclusion

Despite there being clear advantages to retaining discretion in making spousal maintenance orders there has been little consensus on what that should look like, as an exception, if a default time-limit were imposed. If exceptions are not clearly defined, this would limit the certainty intended by the adoption of a time limit. The same difficulties that currently exist in the system could remain unresolved.

If you need personalised advice or have specific questions, please don’t hesitate to reach out to our experienced family law team.

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