When considering the question of spousal maintenance 3 main decisions need made;
How much is reasonable, in any?
How long is a reasonable period of time for maintenance to run?
Should the recipient of maintenance be entitled to extend the period of maintenance before it expires? Non extendable or extendable term?
It is the 3rd question that this article seeks to answer.
In mediation, when considering whether there should be a non-extendable or extendable maintenance term the separating couple would need to take into account a range of factors.
As well as legal factors and principles they may have their own more personal moral and value-based factors to take into account, since mediation is about the separated couple making their own decisions and not the court. They will both need to feel that the outcome is fair to them both in their particular circumstances.
However, so far as the legal factors are concerned, the legal approach is to give the recipient of maintenance a period of transition to independence that is reasonable in their circumstances, placing an obligation on the recipient to use their best endeavours to improve their circumstances and adjust to independence, without undue hardship.
A specified maintenance period should be considered rather than an open-ended period unless the payee would be unable to adjust to independence without undue hardship, by the end of this period.
It has been decided in previous cases that a degree (not undue) of hardship in making this transition to independence is acceptable.
Therefore, nowadays there are very few joint lives maintenance orders being made.
At the end of a long marriage, where the choice between a joint lives order or an extendable specified maintenance term is finely balanced, an extendable term order is the more likely outcome in court.
Where a joint lives order is not being considered and the choice between an extendable and non-extendable maintenance term is finely balanced, the law currently suggests that the decision should normally be made in favour of the economically weaker person and the extendable choice preferred.
If an extendable term order is made, the payee needs to have made an application to extend the length of time before the original term comes to an end because once it has come to an end, it is too late !
If, despite every valiant attempt and effort to improve their financial circumstances and adjust to financial dependence, it simply has not been possible by the time maintenance comes to an end and, in all the financial circumstances, taking into account all the relevant factors under the matrimonial causes act, it would be justifiable to do so, the term could be extended for a further period of time, giving the recipient of maintenance additional time to adjust to independence.
As with most of these decisions is important for the separating couple to reach a decision themselves about whether to have an extendable or non-extendable term maintenance order, following an open honest and informed dialogue about their options, in their particular circumstances, with the help of a properly qualified mediator.
Our video series, forms, guides and ongoing articles have been created to help separating couples in this endeavour.