SS and NS [2014] EWHC 4183

This case centred around the issue of periodical payments, both in terms of the duration of maintenance and the amount.

The wife was 39 and the husband 40.  Cohabitation had commenced in 2002.  The parties married in 2007 and had three children aged 11, 9 and 7, all of whom were privately educated.  The parties separated in May 2013.

The husband was a banker.  The wife had been the children’s primary carer since 2003.  Since the parties separated in 2013 she had obtained a part time job at a gym earning around £5,000 per annum and was training to be a pilates instructor.

The total assets amounted to around £3.3 million and included unvested shares of the husband.  Mostyn J held that the bonus element of the assets should be included in the assets schedule and capable of division saying “In my judgement there would have to be special features present before money earned but which is deferred in collection and conditional on performance is excluded from the divisible pool”.

In relation to periodical payments the wife sought an order for £60,000 index linked for 27 years with an additional 30% of the husband’s net bonus.

Mostyn J made the following findings in relation to spousal maintenance:

  1. Spousal maintenance is properly made where it can be shown that choices made during the marriage have generated hard future needs on the part of the claimant (in this case the duration of the marriage and the children were pivotal factors).

  2. An award should only be made by reference to needs save in exceptional cases where it can be said that the sharing or compensation principle applies.

  3. A term should be considered unless the payee would be able to adjust without undue hardship to the ending of payments.A degree of (not undue) hardship in making the transition to independence is acceptable.

  4. If the choice between an extendable term and a joint lives order is finely balanced then the Court should lean towards an order with an extendable term and in favour of the economically weaker party.

  5. The marital standard of living is relevant.The judge should not only consider the claimant’s budget but also stand back and look at the global total and ask if it represents a fair proportion of the respondent’s available income.

  6. On an application to discharge a joint lives order an examination should be made of the original assumption that it was just too difficult to predict eventual independence.

The wife was awarded £30,000 per annum index linked to RPI which equated to 36.4% of the residue.  She also received a capped percentage of 20% of the husband’s future bonuses.  The judge made the bonus share non-extendable but the base spousal maintenance an extendable term which expired when the youngest child reached 18.

Child maintenance was topped up to £22,500 and in addition school fees were ordered to be met out of income.

From the liquid assets the wife received a greater percentage, 52.7% with the husband receiving 47.3%.  Pensions were shared equally.

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