In his judgment in SS v NS (Spousal Maintenance)  EWHC 4183 (Fam) Mostyn J set out the principles of spousal support post-marriage and sought to undermine the high threshold imposed in Fleming v Fleming when a party seeks to extend a maintenance order where there is no Section28 (1A) prohibition.
The case involved a 6 year marriage with 5 years pre-marriage co-habitation where there were 3 minor children. The Husband (40) was a banker and the Wife (39) worked in a gym and was training to be a pilates instructor.
The Husband’s income was paid as salary and bonus payments.
The parties were agreed that there should be a term order in respect of spousal maintenance but the Wife sought an extendable term and the Husband proposed a term with a Section 28(1A) bar.
Mostyn J deals with the history of spousal maintenance and the Law Commission report in the course of his judgment.
At paragraph 44 he states:
In Fleming v Fleming  EWCA Civ 1841;  1FLR 667 at para 13 Thorpe LJ stated that “the exercise of [the] power to extend obligations requires some exceptional justification”. In Miller at para 97 Lord Nicholls and at para 155 Lady Hale accepted that this set an applicant a “high threshold” to surmount. However, in McFarlane v McFarlane  EWHC 891 Charles J stated at para 104 that “the test or approach described and applied in Fleming does not survive”. I agree.
Mostyn J then deals with the approach the courts should take in considering the extension or discharge of periodical payment orders:
An application by a payer to discharge and an application by a payee to extend should be decided by reference to the same principles. Charles J points out that “the reasoning behind the earlier order that a party seeks to vary is a relevant circumstance of the case, and therefore on an application to vary it can be assessed whether the purpose of the earlier order has been fulfilled and, if it has, this would be a relevant (and perhaps a decisive) factor in favour of refusing an extension or variation.” Therefore, on an extension application an examination would have to be made of whether the implicit premise of the original order of the ability of the payee to achieve independence had been impossible to achieve. Similarly, on a discharge application an examination would have to be made of the assumption that it was just too difficult to predict eventual independence. This is to state the obvious. However, I believe that if the choice between an extendable term and a joint lives order is finely balanced the statutory steer should militate in favour of the former.
Interestingly, Mostyn J decided to make an extendable order in respect of spousal maintenance based on the Husband’ salary but imposed a Section 28 (1A) bar in respect of the ‘top-up’ maintenance imposed in favour of the Wife on a percentage of the Husband’s bonus payments.
Practitioners will have to consider their advice to clients carefully when advising them about the prospective discharge or extension of spousal periodical payment orders. Simple reliance on the high threshold test in Fleming is unlikely to suffice.