Can a nominal maintenance order be converted into a substantive maintenance order?

Converting a nominal maintenance order (where one party pays the other a small sum of money on an ongoing basis) into a substantive maintenance order (conversely, where a higher sum is paid) is a complex and highly nuanced process. Typically, the Court tends to grant this conversion when it is clear that the applicant spouse needs child support as opposed to maintaining their own needs. The severe and unforeseen consequences of COVID 19 have led many to speculate how the court will deal with the economic fallout in cases where financial fortunes have somersaulted.

Case Study: Wife applies to increase spousal maintenance.

Using the case study of AJC v PJP (2021), we explain how this has been considered during the pandemic. The Court in this case examines a wife’s application to increase her spousal maintenance from a nominal amount to a substantial amount given how badly she suffered financially as consequence of the pandemic. It also provides an insight on the Court’s attitude toward such applications in the current climate.

What are the facts of the divorce case?

The husband and wife were married for nearly ten years and have two children (the youngest was four years old at the time of the divorce). In November 2011, the husband and wife separated, and a nominal maintenance order was granted (in the wife’s favour) in November 2012.

The wife was an airline pilot but lost her job when the pandemic struck. She claimed that she would secure work once things returned to normal but needed help in the interim. At this point, her income comprised of government benefits totalling £2,000 per month (of which £900 was child support) and so made her application to vary the maintenance order upwards.

The husband, who was self-employed, argued that his business had also suffered; that he was struggling to pay his debts and child support; and barely had anything leftover for his own living expenses.  At the time of the January 2021 hearing, the parties had been divorced for eight years, and the wife, in that time, had been self-sufficient. Their youngest child was now fourteen years old.

The wife argued that the Court should treat the nominal maintenance order as an ordinary maintenance order and the requested upward variation was a marginal difference.

The Court’s decision

The Court disagreed and dismissed the application and made it clear that, in order to succeed, the change in circumstances must be not simply significant (i.e., not just an increase or decrease in either party’s income) but rather a change of circumstances which neither party expected to happen thereby making it impossible for them to account and budget for the impact caused by that change.

In support of its decision, the Court relied on referred to prior case law, such as:

• North v North (2007) where that Court held that the former husband was not an insurer of his former wife’s life choices, and it was entirely her responsibility to deal with the fallout of her failure to realise her own earning potential.
• SS v NS (2014), which looked at the legal and ethical basis of spousal maintenance and that an order could be made where there were income needs to be met and a focus on facilitating the transition to independent living.
• Mills v Mills (2018), where the former wife made a poor investment decision and tried to rely on her former husband to bail her out. The Court held that the former husband should not be held to account for events that occurred outside of the marriage which had nothing to do with him.

So, it does appear that the recourse to rely on former spouses to remedy  financial situation occurring after the end of the marriage is pretty limited. Whilst this approach might give rise to some unfairness in individual cases, looking more broadly, it is probably right that the Courts are keen to encourage parties to develop their own independent lives post-divorce. That is as long as society supports this approach in other respects, such as flexible working.

If you need advice around maintenance orders, please get in touch with either Jane McDonagh or Joe Hennessy.