Whilst the court tries to achieve a clean break between divorcing spouses, this is not always possible and the court can make a spousal maintenance order. In the case of O'Dwyer v O'Dwyer, the court considered whether the future income of the husband should be shared with the wife.
The parties married in 1988 and separated in 2016. It was agreed that the net assets totalling £5.8m were to be shared equally. The Judge at first instance ordered the husband to pay the wife £150,000 per year until his 68th birthday. Mr Justice Francis confirmed on appeal that future income cannot be shared and that spousal maintenance had to be based on the wife’s needs only. However, where the husband has substantial earnings, the needs test will be applied with a degree of generosity.
The Judge calculated that the wife’s income needs were £120,000 per annum. He calculated that she should be able to realise £52,000 from the capital she would have left after rehousing herself, therefore he made a maintenance order of £68,000 per annum, in place of the previous order of £150,000. This appears unfair when the husband had an income of approximately £1m per year but, it was a result of the court confirming that earning capacity is not subject to the sharing principle.
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