W v W

A joint-lives order for periodical payments does not prevent a later court from reassessing the recipient’s earning capacity, needs and retirement provision. The court may phase down maintenance and set an end date where the recipient has a realistic opportunity to contribute financially and can adjust without undue hardship. An earlier court’s failure to make a specific finding of self-sufficiency does not prevent that later assessment. For permission to appeal, the applicant must show a real prospect of undermining the lower court’s conclusion. Reasons need not reproduce every calculation where the evidential basis is clear from the material accepted by the judge.

The former husband applied to vary a 2008 order requiring him to pay joint-lives spousal maintenance, child maintenance and school fees. The application was based on a deterioration in his finances and the earlier judge’s expectation that the former wife would begin contributing to her own maintenance.

Her Honour Judge Roberts varied the order by reducing spousal maintenance in stages and providing for its cessation in 2019. The former wife sought permission to appeal, arguing that the judge had failed to respect the joint-lives order, assess her present and future needs, consider retirement needs and explain the proposed reduction. The central issue was whether there was a real prospect of showing that the variation lacked adequate justification.

The renewed application for permission to appeal was dismissed. There was no real prospect of success.

1. The original joint-lives order did not preclude variation. The earlier judge had expected the former wife to make some financial contribution but had not determined her precise earning capacity or found that she would become self-sufficient. The possibility of continued support during retirement had therefore remained open, rather than conclusively established.
2. Judge Roberts had undertaken the assessment that the earlier judge had not. She considered the former wife’s work experience, earning capacity, failure since 2008 to seek work or retrain, present income needs and the parties’ retirement provision. The former wife’s needs had been assessed at £36,000 per annum rather than £64,000. The court accepted that employment, together with tax credits, child benefit and child-related payments, could produce household income exceeding £46,000 without reliance on spousal maintenance.
3. The staged reduction was intended to give the former wife time to improve her earning capacity as her childcare responsibilities reduced. It was also legitimate to recognise the petitioner’s need to make retirement provision, including the continuing cost of supporting the younger daughter and reliance on capital after retirement. Judge Roberts had applied the test in section 31(7) of the 1973 Act and was entitled to conclude that the variation would not cause undue hardship.
4. Although the reasons could have been more specific, they were sufficient. The judge had accepted the detailed calculations advanced in the written arguments, making the foundation of the order clear. A further application remained available if, despite best efforts, the former wife could not make a significant financial contribution; the onus would then be on her.

1. Court of Appeal (Civil Division): dismissed the renewed application for permission to appeal and held that there was no real prospect of success.
2. Central London Civil Justice Centre: varied the existing maintenance order by reducing spousal maintenance in stages and providing for its cessation in 2019.