How long should maintenance be paid? This will depend on the length of the marriage and whether or not there are children. If the marriage is short and there are no children, no maintenance may be payable. There would often be a clean break after a readjustment of capital assets in these circumstances.
The court has a duty to consider whether a clean break is appropriate. It does so when the original order for maintenance is made and whenever it is varied.
A clean break is another way of saying that the maintenance rights of both parties are dismissed, whether or not one party has received maintenance in the past. Once maintenance rights are dismissed, they cannot be reopened.
In better-off families, it is sometimes possible to "buy out" maintenance rights by giving the person who would otherwise receive maintenance a large capital sum. There is a commonly used method of calculation for capitalising maintenance called the Duxbury calculation.
It is also possible to order maintenance to be paid for a specific period of time. Such an order is sometimes called a term maintenance order. For example, maintenance might be paid for a period or term of, say, two years to enable somebody to retrain and become self-sufficient.
There are two types of term maintenance orders:
- The first type allows for the order to be extended, provided a formal application is made to the court to extend the original period of maintenance before it has expired. In these circumstances, the court can order maintenance to be paid for another period of time or even to be paid on an open-ended basis.
- The second type of term maintenance order is one that cannot be extended. The court order would state expressly that it could not be extended. Orders like this give the person paying maintenance the certainty of knowing that at the end of that period no further maintenance will be payable.
The courts have become increasingly reluctant to make orders for term maintenance, particularly orders that cannot be extended, where the person receiving the maintenance is looking after young children. It is regarded as too harsh to disallow a mother to come back to the court should she need to do so, to ask for maintenance to continue or to be varied.
It is also important to have regard to the long-term income needs of both husband and wife – particularly after retirement.
If, for example, a wife is coming back to work after bringing up the children, it will not be feasible for her to build up sufficient pension in what is likely to be a short career.
While she may be able to support herself in the short term, it may be appropriate to keep open her maintenance rights so that she can have an income after retirement, payable out of the husband's pension. See the section on pensions below.
It is essential to get legal advice on the drafting of any separation agreement or consent order. These are technical documents and it is important to ensure that all aspects of the settlement have been well drafted and that all the orders that a court can make have been dealt with.