Varying spousal maintenance for equitable outcomes

The case of KG v NB [2023] EWFC 160

Weightmans’ family team acted on behalf of the husband (‘H’) in his application to vary downwards spousal maintenance provision made in a financial consent order in 2019.

Crux of the case

The case centred around H's plea for adjustments based on the family’s changing financial circumstances, mainly his former wife’s (‘W’) cohabitation with a new partner.

We were successful in securing a total reduction of approximately £50,000 over the maintenance term.

This case reveals the complexities involved in reconsidering financial obligations while aiming for fairness to all parties. In truly grappling with the changes to the financial landscape, it marks a positive shift in the court’s attitude towards payors in a system which has historically been seen to favour the recipient of maintenance payments.

Background

By way of background, after the divorce W remained living in the former matrimonial home with the parties’ two teenage children. W suffered from Raynaud’s disease and had a low earning capacity.

Since early 2020 she had been in a cohabiting relationship with a new partner. In March 2021 the couple became engaged, although they denied plans to actually marry. The cohabitee contributed to the family budget c. £1,068 per month and also made a significant lump sum payment of approximately £270,000 to reduce the mortgage on the family home and repay some of W’s liabilities.

The 2019 order provided for H to pay W spousal maintenance until 2036, with a phased reduction.

This was in addition to child maintenance according to the CMS calculation.

Change of circumstances/cohabitation

In the light of the cohabitee’s financial contribution to the household and the obviously committed nature of the relationship, H argued that spousal maintenance should be reduced immediately, (backdated to the date of the application, with a repayment of sums overpaid to date), and then should end on the sale of the family home, which was fixed in the 2019 order as being in 3 years' time, (2026).

W disagreed with H and argued for the continuation of the 2019 order with payments until 2036.

The key issues were

• recalculating maintenance considering the cohabitee's role
• assessing future changes in maintenance needs
• W's earning capacity and
• the ability of H to meet the existing maintenance award.

The case explored the complexities arising from changes in circumstances, examining W's cohabitation and engagement. HHJ Willans recognised the commitment between W and the cohabitee and the cohabitee’s significant contributions towards the new family unit. These elements could not be ignored. W's earning capacity was not as significant as argued by H, who could afford the maintenance based on his present financial standing.

Outcome

HHJ Willans delineated the judgment into two periods: before and after the sale of the former family home, which had been fixed as 2026 in the 2019 order.

During period 1, (through to 2026), the cohabitee's contributions were deemed appropriate, and the court felt that W’s needs could not be further reduced, although the period of time for payments at this rate was reduced by 7 months to tie in with the youngest child leaving secondary education.

In period 2, (post-2026), the court anticipated improved finances, culminating in reduced maintenance needs. The court ordered a single adjustment in maintenance after the youngest child left secondary education, ensuring a phased reduction.

This delineated approach and phased reduction in maintenance obligations signified an attempt to strike a fair balance among all parties involved and, importantly, H as the payor, who saved £50,000 over the course of the maintenance term.

Summary

The case highlights the importance of the court acknowledging and addressing changes in financial circumstances to ensure more equitable outcomes.

It is certainly a positive step towards fine tuning the perceived imbalance in maintenance obligations, and welcome news for payors.