Dame Laura Kenny, Great Britain’s most successful female Olympian, has recently announced her retirement from cycling at the age of 31. With five Olympic gold medals and seven World Championship titles to her name, as well as many others, she has decided that now is the right time to hang up her bike and spend time with her family. Laura is married to fellow retired cyclist Jason Kenny and they have two young children. 

Most of us will be looking to retire in our mid to late 60s and up to that point enjoy a steady income from a salary. However, retiring at such a young age is of course common for professional athletes, and with this comes the likelihood of a vastly decreased income. While Laura and Jason Kenny are happily married, in the context of separating couples retirement can be an important factor in how a Court makes a financial decision. Current and future income or earning capacity is one of a number of statutory factors that the Court must take into account, and is of particular relevance when the Court is deciding whether to make an order for ongoing spousal maintenance. 

For most, this will be a fairly simple exercise, with earning capacity judged with reference to the parties’ careers and historical earnings, and the length of time until conventional retirement age. In some cases, however, it is clear that retirement (or a forced career change) may come much earlier in life, as is the case with professional athletes, and the Court will take that change in earning capacity into account when making a decision. 

As ever, there are then a number of grey areas – a common example being an extremely high earner in a very pressurised job. Is it reasonable to expect a hedge fund manager or a CEO to continue working in that role until their twilight years (or effectively require that by making an order predicated on such an earning capacity)? This is an issue that the Courts are having to grapple with more and more frequently, especially as issues such as mental health, burnout, work life balance and flexible/part time working gather greater importance in the workplace and in society more widely. As maintenance orders are variable (e.g. if circumstances change), Courts may be more inclined to assume continued earnings on the basis that if the circumstances change materially, the maintenance can be revisited at that point.  

What the Court is unlikely to tolerate, however, is a high earner claiming they will quit (or actually quitting) their career in the immediate context of financial proceedings, in order to supress their income and avoid a maintenance award. A surprising number of litigants come up with this particular ruse and are often unpleasantly surprised when they find out how a Court is likely to react. Absent an evidenced justification to the contrary, a Court is very likely to assume that the individual in question will continue to earn at that level in future and will make an order on that basis, in the same way that a Court may assume that a non-working spouse will in due course re-enter the workplace and start earning an income. 

As workplace habits and expectations change, the issue of earning capacity and retirement are likely to be an issue with which the Court must grapple more and more.