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Charlotte Bradley and Emily Moore
Kingsley Napley LLP
We have all probably experienced the rather hollow comfort of advising a client (usually a husband) following a joint lives maintenance order that, ‘You can always apply to vary ...' particularly when he may have just experienced firsthand the cost, both financial and emotional, of litigation.
In some cases the facts of the case enable the practitioner to advise their client with some confidence (although there may be regional differences - see below) that a joint lives order is appropriate and a husband is going to have an uphill struggle arguing against such an order (and he will probably be advised by his lawyers not to even attempt to do so). We are all familiar with the facts of these cases: medium to long marriage, wife with no or very limited future earning capacity who has not embarked upon or has given up a career to have children and who is probably in the 45 years plus age range (thereby extinguishing or minimising any arguments about being able to retrain).
Other cases are less obvious. What about a case where both parties are in their early fifties, not too far from retirement and there are either no children or the children are largely independent as in the 2004 case of D v D (below)? The husband may argue that there should be a term order on the basis that he says he will retire at age 65 (although now that employers cannot compel employees to retire at age 65 recipients of maintenance payments may perhaps use the general move to later retirement and the end of the default retirement age to bolster an argument for either the term to extend beyond age 65 or for a joint lives order).
To read the rest of this article, see July  Family Law journal.
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