Maintenance to be Based on Need

Helpful guidance on the calculation of periodical payments (popularly known as maintenance payments) in a divorce settlement has been provided by a High Court judge in a recent case.

In deciding a contested claim for maintenance, Mr Justice Mostyn expressed the view that the law relating to property acquired during the marriage is ‘reasonably clear’. However, the law relating to periodical payments is, by comparison, not so clear. He therefore gave his views on how these should be calculated, in the hope that this will result in more cases being settled out of court.

In the judge’s opinion, a claim for periodical payments should be settled by reference to the principle of need alone, although there should be some room for discretion in assessing those needs, which ‘are elastic in concept’. His view is that the principle of sharing, which could give rise to additional maintenance over and above need, should not be applicable other than in the most exceptional circumstances.

For the judge, one vital distinction between the division of matrimonial property, where the sharing principle is commonly used so that there is equal division of assets between the couple, and the amount of maintenance to be paid is that by definition the matrimonial property has been acquired during the marriage whilst periodical payments would be met from post-divorce earnings.

It remains to be seen whether the judge’s guidance will be followed in future disputes, but any attempt to facilitate resolution of contested cases is to be welcomed.