A case heard by Hess J has added to the cache of authorities on when it is (and is not) appropriate to impose a clean break and when it is appropriate to take into account the financial contributions of a new partner. In EL v ML [2024] EWFC 21, the fact that the former wife would remain the primary carer of two children, the failure of her business enterprise, the ex- husband's period of unemployment and other factors combined to create a situation sufficient to rebut the husband's suggestion of there being an immediate clean break on his application to vary/capitalize/discharge the ongoing maintenance order in favor of his former wife.
The judge reminded us of the relevant considerations for or against ongoing maintenance or a clean break scenario:
- A periodical payments order (for spousal maintenance) should only be made if the payee reasonably needs the support.
- Can the other spouse 'adjust without undue hardship to the termination of those payments'? Crystal ball gazing is not sufficient, there must be evidence to justify a reasonable expectation of self-sufficiency.
- Extending the maintenance term is an option for the court, but only after a proper analysis of the justification for an extension in the context of adjusting without undue hardship.
- If the choice between an extendable and a non-extendable term is finely balanced, then the decision should normally be in favor of the economically weaker party
- The fact that an ex-spouse is cohabiting with a new partner may well be relevant to an application to vary or discharge that order; but the fact of cohabitation is not to be equated with a re-marriage. Sometimes, it will weigh heavily in the scales, sometimes not. The real question for the court is what ought the new partner to be contributing and how the new partner's contributions affect the needs of the ex-spouse.
Is a clean break hopelessly optimistic?
In this case, the former wife's increased indebtedness and needs claims justified a reinstatement of an earlier financial order, which had been varied by the court to a nominal order because of a downturn in the former husband's business fortunes. The husband's suggestion of there being a clean break was 'hopelessly optimistic' and no s28(1A) bar was imposed (this is the legal mechanism whereby a party in receipt of maintenance is barred from extending the term of a maintenance order once it comes to an end).
But what about the contributions of new partners?
Both ex-spouses in this case were in committed long-term ongoing relationships. The former husband chose not to provide a witness statement from his partner (with whom he was living) preferring to answer questions about her finances during the hearing (she had property interests worth c.£700,000 and a gross annual income of c.£60,000). The judge concluded that the partner could make a contribution to the rent and running costs of the home they shared and this reduced his needs claims on the divorce. The former wife's new partner provided a statement and gave evidence in court - his savings had kept the wife and their household afloat. However, he was not the man of substantial wealth the ex-husband thought him to be so his ability to contribute was purely speculative.
'Litigation is not the only option!'
So cautioned the judge – another reminder that the court now fully expects couples to explore non-court options (mediation, collaborative law, neutral evaluation, arbitration) before seeking redress at court and that it retains the power to adjourn court cases and make costs orders if it decides that couples have unreasonably declined to do so.
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