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Spousal Maintenance - A Meal Ticket for Life?

View profile for Andrew Robinson
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In my day to day practice as a family lawyer, many things have changed since I first qualified in the mid-nineties but there have been a few constants. One of those is the mixture of horror and disgust that instantly contorts the features of my client (traditionally husband) when I tell him that not only will he have to carry on paying to maintain his children (normally relatively uncontroversial), but he may also have to do the same to maintain his (soon to be ex) wife.

In cases where my client is under the impression that the breakdown of the marriage is the other party’s fault (which, as you might expect, is pretty common), the anger is palpable when I tell them that such wrongdoing is usually entirely irrelevant to my client’s duty to carry on supporting them.

There seems to be something peculiarly objectionable to getting out of bed in the morning and working all day only to have to hand over anything between a third and a half of what you earn to your ex-wife, who is often not the first name on your Christmas Card list.

The power of the court to make orders for spousal maintenance arises from the Matrimonial Causes Act 1973 (as amended), and is entirely consistent with the needs based approach that that Act requires. For example, if one has, say, a traditional 30 year marriage where the man has gone out to work and pursued his career and the wife has looked after the home and children, it is plainly wrong and unfair for her to be left without financial support on separation whilst husband can continue to pursue his career until retirement. Likewise, the primary carer for the children cannot be expected to have the same capability to earn as the other parent.

The Court is required to consider whether a clean break is possible

However, the right to make such an order is problematic and, in bigger money cases at least, there has often been a perception that it has been a wife’s charter to have an enjoyable and fulfilled (but work free) life whilst husband continues to keep her in a manner to which she has become accustomed indefinitely. Arguably, that was recognised by Parliament as long ago as 1984 when the MCA 1973 was amended requiring the court to consider in each case whether a clean break can be achieved and, if not, how quickly reliance by one party on the other can cease.

Unfortunately, in my experience, the court has tended to pay scant regard to that amendment until the last year or two. Essentially, if there was sufficient income in the pot to make this look like a maintenance case the legal representative of the likely payer had a gargantuan task on their hands to persuade a reluctant District Judge that a specific term of years on the maintenance would give a wife reasonable time to adjust. Orders were routinely made in such circumstances for maintenance to be paid for the parties’ joint lives indefinitely, with it being left to the husband to apply back to the court to stop the maintenance if and when circumstances changed.

Of course, the logic of this was always questionable. One has to ask what happens if the wife’s circumstances don’t change and what incentive she would have to change them? I personally always felt it fairer to impose a term, and thereby an incentive to work. With it being open to the payee (normally the wife) to apply back to the court for an extension to that term if she could justify one.

Cultural attitudes change, and often the law eventually follows them and it would seem that this is one example where the law may be catching up. Working wives and working single parents are now commonplace and arrangements for care of children far more nuanced than used to be the case. Guidance from on high and a number of recently reported cases lead to the view that joint lives maintenance orders may be an endangered species. The requirement for the court to consider the clean break is now often stated in reported judgments. Most recently, in the case of Wright -v- Wright the court rejected a mother’s claim that she was unable to work over a 10 year period as she was caring for the parties’ daughter. Ms Wright was told that many single parents work and that she should go out and support herself.

Of course, there are often cases where ongoing maintenance for a period of time is going to be required and sometimes this may be a relatively lengthy period (5 years or so). In my view cases where an otherwise capable adult cannot prepare for financial independence over a five year period will be relatively rare.

A Bill is currently before the House of Lords amending the MCA and one of the amendments will be that a maintenance term should not exceed five years unless this will cause serious financial hardship. This would appear to be an attempt to codify in statute an approach that the courts are now belatedly taking.

It seems to me that such change in approach is long overdue and is a triumph for common sense. After all, whatever needs dictate, you have to ask yourself, when you get up on a rainy Monday morning in November would you really want to be giving a significant proportion of the meagre monies earned to somebody else?

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