ENGLAND & WALES Law and Practice Contributed by: Jeremy Levison, Miranda Green and Alexander Bartlett, Levison Meltzer Pigott
Interim Maintenance Pending an overall outcome, there is an expectation that parties shall maintain, to the extent they reason ‑ ably can, the financial status quo which existed prior to the breakdown of the relationship, including their support of one another’s living costs. There will be times when a party withdraws, or fails to provide, financial support in a way that is unreason ‑ able. It is open to a party in those circumstances to seek an order that there should be a level of interim maintenance pending the final outcome of proceed ‑ ings. Such applications will need to be approached careful ‑ ly as the costs involved in bringing the application can outweigh the benefit, sometimes providing a potential Catch 22 situation for the party suggesting they do not have enough money to live on. Test for Maintenance There is no entitlement for a party to share in their ex-spouse’s income. Rather the question is whether a period of spousal maintenance is required to allow someone to adjust to financial independence without undue hardship. While the question of “hardship” is elastic and will be evaluated by reference to the standard of living enjoyed during the relationship, it is notable that some level of financial hardship is considered acceptable. Quantification The quantification of spousal maintenance is notori ‑ ously discretionary and hard to predict, even more so than the division of capital assets. There is no pre ‑ scribed formula as to the amount which the court will award. In cases of more limited resources, the amount will often be driven by a relatively simple division of the remaining disposable income between two parties whose fixed outgoings may differ significantly if, for example, one is expected to take on a significant mortgage. There is a level of acceptance in such cas ‑ es that funding two households will require an element of financial sacrifice on all sides.
In cases where there is greater surplus income, the court will place more emphasis on the schedules of income needs which the parties complete during the financial disclosure process, known as a budget. Their budget will set out a summary of their own outgoings and spending needs, as well as costs that they incur on behalf of the children, whether directly or indirect ‑ ly. The court will consider the reasonableness of that expenditure to arrive at a total figure for a party’s need, again by reference to the previous standard of living. It is a subjective exercise, and no two judges are likely to arrive at precisely the same answer. Against that need will be offset their own income (or capacity to earn income), including any maintenance which they may be due for the benefit of the children. Child main ‑ tenance is considered at 3.2 Living/Contact Arrange- ments and Child Maintenance . This is an example of when having local, experienced representatives can be enormously valuable. A prac ‑ titioner’s instinct, based on experience of their local courts and judges, can be as predictive of the court’s approach as the case law itself. 2.5 Prenuptial and Postnuptial Agreements Enforceability Nuptial agreements can be entered into by parties before or after their marriage. While it is not possi ‑ ble completely to oust the court’s discretion, parties should only sign such an agreement if they are pre ‑ pared to be bound by its terms. The enforceability of the agreements currently flows primarily from a case decided by the UK Supreme Court in 2010, known as Radmacher v Granatino . The court concluded that it should “give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”. Development of Approach Prior to that case, there was a general perception that nuptial agreements would have little impact on a court’s discretion. Since the decision, the courts have shown an increasing willingness to give signifi ‑ cant weight to nuptial agreements which meet certain requirements:
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