Whilst the Court has an obligation to try to achieve a clean break between a divorcing couple, this is not always possible. Sometimes, given the circumstances of the couple, it is necessary for ongoing maintenance to be paid. If ongoing maintenance is appropriate, should the future income of the higher earning spouse be shared with the other? This question has been explored in a recent appeal in the case of O’Dwyer v O’Dwyer [2019] EWHC 1838 (Fam).
Background
The Court had initially concluded in that case that the husband’s future income from his business should be shared, and made an order that the husband should pay spousal maintenance to his wife at the rate of £150,000 per annum.
Appeal
The husband successfully appealed the initial decision of the Court. The appeal Judge indicated that in all but very rare cases, maintenance should only be awarded by taking into account the recipient’s needs. Those needs are subject to the Court’s discretion as to how generously they should be interpreted. A judge can be generous in assessing needs if the other person has a significant income, but the award should still be based on the recipient’s needs.
Conclusion
Given the discretion of the Court, and the significant impact that decisions taken immediately following separation can have on the ultimate award, it is important to take advice as soon as possible in relation to the likely maintenance award that may be made if you are separating. Not only is it important to take into consideration the payer’s income but also the needs of the recipient.