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During mediation, couples often prefer a “clean break” in their financial settlement, meaning they are free of any further financial obligations to each other except for child maintenance.

However, a clause may be included in the Memorandum of Understanding (or MOU, the document that summarises the outcome of the mediation and the proposals for settlement) that allows for a nominal spousal maintenance order of 5p or £1 per year if there are young children involved.

This is a safety net for the receiving party if there is a significant and unforeseen change in their financial circumstances down the line. By having a nominal maintenance order, the door would be kept open should the receiving party wish to apply to the Court in future (so long as it is during the term of their nominal maintenance order) for their maintenance payments to be increased to a substantive amount.

Understandably, this can worry the paying party who fears this small amount might turn into something substantial in the future. However, a recent case puts this into a clear perspective.

THE CASE

The wife applied to increase a nominal spousal maintenance order to a substantive one for a short term during a period of unemployment caused by the Covid 19 pandemic. She had lost her £65,000 a year job as a pilot. The husband’s business as sole car trader had also suffered during the pandemic, and he was stretched financially.

Could the financial consequences of lockdown be treated as a change of circumstances justifying the making of a substantive order?

The answer was NO.

There must be a causal link between the choices made during the marriage which have continued to affect the parties needs and how those needs are met. Former spouses are not to be the insurers of subsequent life choices made by the other spouse. The wife’s unemployment had no connection to the marriage.

English family law no longer holds that one spouse is responsible for the other in cases of unforeseeable events. A nominal order was not to be treated as an emergency button that can be called upon in hard times, even in unexpected and exceptional hard times such as Covid 19.

The above scenario demonstrates a nominal order does not give someone an automatic right to adjust the maintenance and the circumstances need to be right to warrant a change to a substantive maintenance order

If you have any other queries regarding spousal maintenance or if you going through a separation and would like to explore mediation as a route to resolving the dispute, then please contact one of our Family Mediation team today.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.