Spousal Maintenance

Hi. 10 years after Decree Absolute and my Consent Order states that Spousal maintenance reduces to £1 per year. Ex-wife seems to have not realised that this was scheduled for 1 September 2012 and now claims she will need to seek an increase in Spousal maintenance as her own income does not meet her requirements. She continues to receive child maintenance for our 17 year old. Elder child from the marriage is at Uni and earns during holidays. Both have gravitated to live predominately with her during holidays. All aspects of the consent order have been complied with to the letter including ex being mortgage-free. I am heavily mortgaged and remarried with a new family. The prospect of ex-wife having another bite of the cherry seems most unfair.
Should I be worried?
Any advice please.
Many thanks

The legal answer is that a consent order can not be appealed so I would say that 10 years on is way too late for your ex wife to query let alone appeal a consent order.

It may be hard for your wife to comprehend that a 10 year income is coming to an end but I do not think that is your problem as she has had a long time to prepare for the eventuality despite the fact that the children (who are now adults more or less themselves) have gravitated towards your ex.

IT''s always possible to apply for a variation to the amount of spouse maintenance paid if there is a change of circumstances. The courts would then consider the financial position of both parties afresh. Your argument is the finances were settled on divorce and you shouldn''t be subject to further claims.

Fiona is right, it is always possible to apply for an increase or reduction in spousal maintenance.

To some extent, tactically, you have an advantage because the onus is on her to seek a variation.

In Fleming v Fleming 2004 1 FLR 667 it was stated that the Court is always under a duty to consider terminating financial dependence on any application for variation ( well it always is, anyway, on general principles ) but that applies with more force where there is a term order, as in your case.

The argument you have is that the original consent order was made on the basis that the SM would last for ten years and therefore an extension should only be granted in circumstances that are relatively exceptional - for example if the recipient fell ill and was no longer able to manage without continued support. As far as I know this case has never been over-ruled and it is therefore binding on a district judge.

I think it is true that applications to extend nominal orders are not often made and I can''t remember any case on wiki where it has succeeded.

Of course this affects only SM and any child support is not affected.

LMM

Thank you all for the advice so far.
Other factors that may effect the situation are:
Ex has a long standing chronic medical condition which does not currently effect her ability to work, but she claims could be an issue in the future. She also has a long standing partner (the other party in the original divorce petition) and was engaged to him but she called off the wedding. The cynical view is that SM would have ceased on her remarriage but they are still a couple living between two homes. Since the divorce ex has also inherited but I do not know to what extent. 17 year old will likely live most of his time with mum after finishing school.
On my part, I have a successful business which has grown since the divorce, and as previously posted, am remarried with a new family and long term financial commitments. Other commitments relating to children from the marriage (eg schools fees) have only a short time to run.
Many thanks for any additional advice.

Hi,

This is worth a read and might help;

www.thomasmore.co.uk/ImageLibrary/Capital%20City%20Notes.pdf

If your CO states that SM reduces at the end of a 10 year term to nominal £1 pa then as Fiona and LMM have said, your wife can apply for variation now or sometime in the future. If she is still working then she can not rely on circumstances that might or might not affect her earning potential in the future.

Sorry that you will have this in the back of your mind but, remember your children will soon be adults.

Best wishes,

NWTT

Thank you very much, NWTT, this is brilliant. I wish I''d had this a lot sooner !

But Dukey and I had a long and interesting discussion about the whole issue of variations. Dukey is not a lawyer and I am a retired lawyer whose main area of expertise lay elsewhere.

So neither of us was a real expert but we both came to the view which is summarised in the heading :

Variations of maintenance orders are expensive and risky and shouldn’t be started
without serious consideration and persuasive evidence!

I think it''s fair to say we both thought that there were two sets of circumstances where making an application was pretty well completely safe - at least in the vast majority of cases. These were retirement and the other was redundancy , loss of job or a serious diminution in income. In cases like this it''s virtually certain that there will be a reduction and the only issue is how much ; to try and argue that SM should remain at the existing level would be futile and risk an order for
costs.

Your ex has known that her SM would end, so what efforts did she make to become self sufficient ? She can''t argue that childcare is a constraint. You need to decide what work she can do, do a trawl through the sits vac, find suitable vacancies, and ask her why she didn''t apply for them.

She might, however, use the case of Flavell v Flavell, which is referred to in this article, to argue that a total cancellation of maintenance would be inappropriate.

LMM