Introduction:
Divorce is a challenging process, not just emotionally, but also financially. It brings into sharp focus the need for fair financial settlements, particularly around spousal maintenance. This blog dives into the complexities of ‘clean breaks’ and ‘term maintenance’, key concepts in divorce law, backed by notable case law and exploring the court’s decision-making process in achieving fair financial arrangements post-divorce.
Clean Breaks and Term Maintenance: An Overview
Spousal maintenance is a legal requirement that may take various forms, with ‘periodical payments orders’ being one common type. Of these, the ‘joint lives’ order is the most enduring, though it’s subject to significant conditions such as remarriage or death. The courts are increasingly looking towards enabling financial independence post-divorce, ideally sooner rather than later, leading to the notion of a ‘clean break’.
The Court’s Duty and the Concept of ‘Immediate Clean Break’
The courts have a pivotal role in assessing whether it’s feasible to end financial ties between divorcing spouses immediately. This concept, known as an ‘immediate clean break’, essentially negates ongoing spousal support. If impractical, a ‘term order’ may be used, aimed at minimising financial dependence for a necessary period without inflicting undue hardship.
Analysing Key Case Law
Fisher v Fisher (1989): This case underscores the importance of a gradual move towards financial independence, carefully balancing necessity and undue hardship.
Flavell v Flavell (1997): Demonstrates the court’s cautious approach in cases with middle-aged individuals, carefully predicting future financial independence.
C v C (1997): Addresses the criteria for assessing financial independence, considering all impacts of the marriage, including child care responsibilities.
The Role of Term Orders in Practice
Term orders, often the subject of political debate, are influenced by the marriage’s duration and the supported spouse’s potential for financial independence. Courts are typically hesitant to apply term orders to primary caregivers of young children, considering the impact on their employment prospects.
Waggott and O’Dwyer: Amortisation of Surplus Capital
In cases like Waggott and O’Dwyer, courts have dealt with the division of surplus capital post-divorce. This could involve requiring the amortization of such capital as part of spousal maintenance, particularly when income capacities differ significantly.
Step Down Orders: A Middle Ground
Courts may use ‘step down’ orders, where maintenance payments gradually decrease over time, aligned with changes in circumstances like the payee starting a job.
Deferred Clean Breaks and Extending the Term
Sometimes, courts issue a term order with a directive that prohibits extending the term, known as a ‘deferred clean break’. Such orders demand meticulous judicial consideration, especially when the initial order had a fixed duration.
Modern Perspectives: SS v NS (2014)
Mostyn J’s guidelines in the SS v NS case (2014) offer a modern approach, focusing on transitioning to financial independence, with maintenance awards centered around proven needs.
Concluding Thoughts:
Clean breaks and term maintenance in divorce law seek a balance between financial equity and practical independence. Through case law, we gain crucial insights into how courts address these multifaceted issues, always with a keen eye on the unique circumstances of each case. As legal norms evolve, these principles remain vital in directing fair and equitable solutions in divorce settlements.