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The changing face of maintenance

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‘Get a job!’ - That’s what the divorce court told Mrs Wright when she asked for maintenance payments from her husband to support her child.                       

In the past, a court would have viewed such a situation quite differently. Courts would have made allowances for the divorcing parent who had given up their career to raise their children. Many would have been compensated for the loss of their job prospects and earnings in making such a decision. Now, if their children are older than seven, they are being told to re-train, take on part-time work and contribute financially. This won’t necessarily affect any separate ‘child maintenance’, but it does mean courts are less willing to support a parent’s decision to stay at home once their children reach that age.

There has been a significant shift in the way courts view the rights of divorcees to claim maintenance. Previously it was not unusual to see former spouses receiving maintenance for life. For some, this meant years of either being supported or paying out. Now, the courts still enforce a duty to support each other financially after a divorce, but there is no longer an automatic entitlement to receive maintenance. 

Some might think gender bias is at play here, but this couldn’t be further from the truth. Times have changed and as the traditional gender roles for work and childcare continue to blur, so too does the balance of cases for men and women claiming maintenance. Of course, this doesn’t stop many from, wrongly, accusing the courts of bias either men or women in these cases – this comes with the territory of an often emotive subject.

This has always been a hot topic and the subject of significant debate. Much of this is to do with the complicated nature of ‘spousal maintenance’.

For example, payments will end automatically on the remarriage of the person receiving the maintenance but do not end if they are only choose to cohabit, even if they are being supported financially as part of that cohabiting. This of course can lead to plenty of arguments and further bitter disputes in the courts.

Having to keep paying maintenance has important legal consequences. There is no ‘clean break.’  There are still financial and legal ties to your former spouse. Payments can be increased or reduced over time, or they can be changed into one capitalised lump sum. It can mean further court involvement. Even on  the death of the payer the former spouse can potentially make a claim against their estate as a ‘dependent’ because of the ongoing financial support that was being given to them.

For these reasons many don’t want to be paying money after a separation. The good news is that the courts are on their side, to some extent. There is a duty to give a ‘clean break’ if possible and the court often does. But if a partner has brought up children, run the household and/or supported their ambitious partner, who has had a successful career, this can result in financial imbalance between them. This would make the court’s ability to give a ‘clean break’ more difficult, particularly if it would result in one party being significantly better-off then the other.

Some recent guidance has come from Mr Justice Mostyn. His case concerned a maintenance claim which he felt was “speculative, experimental and unfeasible”.  He didn’t mince his words when describing the divorcing wife as having “great bitterness” towards her husband.  However, he awarded maintenance, amongst other things, at £30,000 per annum until she reached 50 in 2025, though this could be extended later.

This supports the general view that maintenance should end as soon as it is just and reasonable.  There is an obligation to consider fixing the period of time over which payments should be made unless this would create undue hardship. This is to encourage a former spouse to develop financial independence.

Although the law gives us important principles, some argue things need to be clarified further.

The prevailing view is that maintenance should not be taken for granted. If made, it should be for the minimum amount of time necessary. There is more emphasis on the needs of the individual, the transition for that person into independence and the affordability of the payments.

The case of Mr and Mrs Wright received vast media coverage because it showed how much the situation has changed. Mrs Wright argued that she needed maintenance to look after their ten year old daughter, but the view was she had not made any attempt to better her own income and had not worked since her divorce. The judge responded that she would be expected to begin to make a working contribution towards her own household expenditure within the following two years - many women with children worked and so should she.

This case has become known as the “get a job” divorce ruling and was a landmark case coming out of the Court of Appeal.

Millions of working parents raise children.  Gingerbread, a charity for single parents, estimates that 60% of single parents are in work. So will spousal maintenance disappear? No. Does this give hope if you have been paying maintenance for a long time? Are we expecting a rise in the number of former spouses applying to reduce or cancel their existing maintenance orders? Potentially.