The recent decision of the Supreme Court in Mills v Mills has highlighted the current debate regarding spousal maintenance in England and Wales. Press headlines have focused on the apparent "meal ticket for life" that such orders are said to provide.
As is so often the case, the reality behind the headlines is somewhat different, but there is certainly lively debate amongst family lawyers regarding spousal maintenance and whether the law in this area should be reformed.
Spousal maintenance is used by the English courts to adjust the financial resources of the parties on divorce, usually in conjunction with other orders.
It is important to emphasise that the court only has power to order maintenance if the parties were married. No maintenance is available to a cohabitee in their own right, regardless of the length of the cohabitation. Cohabitees can only make claims on behalf of any children.
The issue that is currently under debate is the time period for which spousal maintenance orders are made. There are primarily two routes that the court can go:
Orders can be made on what is called a 'joint lives' basis. In fact, that description is not helpful; payments will end upon the death of either of the parties, but also on the remarriage of the recipient or (significantly) a further order of the court. At any time, either party can apply to the court for a variation in the amount paid or the termination of the payments. Nevertheless, these orders can remain in place for considerable periods of time.
Alternatively, orders can be made for a fixed period of time. The court can make this fixed period extendable or non-extendable. Either way, the maintenance payments will still end on the death of either party, the remarriage of the recipient or, again, a further order of the court.
Ultimately, the court seeks to achieve a fair outcome, and will consider a broad range of factors before coming to a decision. The most important of these is the "needs" of both parties.
Needs is measured by assessing the available resources, and the standard of living during the marriage (the longer the marriage, the more important this factor will be). Although the court's objective will be to enable a transition to independence wherever possible, it is generally considered right and fair that relationship generated needs should be met by the other party if resources permit.
The most obvious relationship generated needs are those needs that result from having children. As one particular High Court judge, Mr Justice Holman, put it, "the having of children changes everything ." If a couple have decided that one party in particular will take responsibility for childcare at the expense of their own career and employment potential, then long term financial dependence can result.
The English court's approach to maintenance is considered to be one of the most generous jurisdictions to wives in the world. Many other jurisdictions are much more restrictive in their approach, limiting spouses to a maximum of perhaps three or five years financial support.
A Private Members Bill put forward by Baroness Deech is currently before Parliament and seeks to create a strong presumption of a five-year fixed term. It is extremely unlikely that Baroness Deech's Bill will receive Royal Assent. However, the Bill has stimulated a great deal of debate amongst lawyers and non-lawyers alike. Is the concept of spousal maintenance inimical to the idea that a married couple are equal? Would tight restrictions on spousal maintenance encourage parents back to the work place?
Baroness Deech has been particularly critical of the current law, claiming that lifelong support is unjustified and 'undignified' for recipients, and reflects a 'victim mentality'.
Other commentators highlight that, in fact, spousal maintenance orders are already rare, being awarded in just 16 per cent of cases. Further, many women incur a considerable 'motherhood penalty' in reduced earning capacity and savings/pension accumulation – the impact of which will be felt following divorce. They suggest that rather than being 'undignified', or reflective of a 'victim mentality', spousal maintenance that acknowledges the economic impact of how a couple have chosen - or have been required by circumstance - to raise their children protects the dignity of the primary carer, more fairly distributing between the parties the full economic impacts, positive and negative, of their marital partnership.
However, in a recent letter to the editor of Family Law, Baroness Deech responded:
"Which comes first – equality at work, affordable childcare and flexible working patterns, or reformed spousal support? I agree with Eric Clive, who was responsible for the successful 1985 Scottish law on financial provision, that there is 'something fundamentally repulsive about the whole idea of dependent women'. And I think that it is only when a reformed financial provision and property law based on equality is promoted that women will push for, and achieve, better working conditions and more respect. This is what has come about in other jurisdictions with more equal law".
The debate continues.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, December 2018