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Long-term maintenance has long been the norm for financially-weaker partners, but new guidance could signal a far more considered approach from the divorce courts, explains Graham Coy of law firm Mundays.

There is an important debate taking place which may affect as many as one in two of all married couples, but too few are even aware that it is taking place. So far, the debate is chiefly amongst family lawyers and judges. It deserves a much wider audience.

The backdrop to ‘maintenance’

The rate of marriage breakdown in the UK is stubbornly high, with about 42% of all marriages ending in divorce. The debate which is now taking place concerns maintenance for the weaker financial partner in a marriage. Normally, but not always, that will mean the wife. But perhaps a cleaner break for divorce is on the cards?

Judges in England and Wales currently have very wide discretion as to when to award maintenance, how much and for how long. Whilst in Scotland however, unless there are exceptional circumstances, maintenance will last for no longer than three years.

In England the position could hardly be more different. Firstly, a judge can order that maintenance last until one of the couple dies, or the recipient re-marries, or the judge decides that the obligation should come to an end. This may well be appropriate where, say, the wife or ex-wife has an income of her own or where she receives sufficient capital over and above what she needs to house herself to invest and produce an income. This is commonly known as a “clean break”.

Living with another person will not trigger a termination although it is likely to result in the amount of maintenance reducing.

A judge may also decide that maintenance should last for a certain number of years or until a specified event, for example, the children finishing school. These are known as Term Orders and they can be extendable or non-extendable.

Government guidance

As long ago as 1984, Parliament imposed upon judges a duty to consider whether a couple’s financial dependency upon one another should come to an end. In practice and until recently this appears to have been largely forgotten or ignored by both judges and lawyers generally.

Maintenance was to be terminated as soon as it was fair to do so and the term should be considered unless the recipient would be unable to adjust without there being undue hardship. Long-term maintenance was to be the exception and not the rule. In the ensuing 21 years, long-term maintenance has been the norm. The question now is whether that should continue to be the case.

Parliament has also given judges wide discretion as to how much maintenance should be. In many ways this was perfectly sensible. It allowed courts to consider each and every case on its own individual facts and match their orders to what was needed and what was affordable. On the downside, it has produced uncertainty and inconsistency.

From time to time judges have applied a “one third rule”, talked about “reasonable needs” and more recently we seemed to be approaching the point where there could be an equal sharing of not just what capital had been built up during the marriage but also an equal division of future income as well.

A formula for fairness?

Just under a year ago The Law Commission, the independent body which advises governments on law reform, floated the idea of developing a formula to calculate maintenance but shrunk away from suggesting how this might be achieved.

The current debate has been brewing for a year or so but has been given added impetus and publicity by Mr Justice Mostyn in the Family Division of the High Court. In a judgment published at the very end of last year, he tried to come to terms with two fundamental but conflicting themes.

Firstly, should Parliament lay down as a matter of social policy what maintenance should be paid by whom and for how long, or should that be left to lawyers and judges who practice in this area daily in their working lives?

Secondly, every case is different and is it realistic to impose a strait-jacket on couples without looking properly at decisions which they made during their marriage, their respective ages, their individual resources and needs?

The Law Commission came out against the strait-jacket approach, although it thought that a formula might be helpful.

Mr Justice Mostyn was clear in stating that a formulaic approach will not work, explaining that “the assessment of need is elastic, fact-specific and highly discretionary”. He added that to develop a formula may prove to be an impossible task given the scale of the individual variables. In other words, no two cases are the same. To impose a formula is bound in practice to lead to unfair solutions for one or even both parties.

He pointed to the Child Support Act and the Child Support Agency which have been abject failures in dealing just with maintenance for children.

The conclusion?

Concluding his judgment, he attempted to set out eleven principles to apply when making any decision about maintenance. To examine those is beyond the scope of this article but they can be summarised by saying that they amount to a practical common-sense answer to a problem which has seen too little attention for too long.

What he did make clear is that long-term or even indefinite maintenance should be a last resort, termination of maintenance, now or later, should always be considered and the amount payable should take into account whether there are still dependent children, as well as the length of the marriage. Perhaps most significantly, maintenance must reflect real financial need and not an exaggerated wish-list

But one important question remains.

Is this an issue which is simply too important to be left to lawyers and judges? It goes to the heart of what we think marriage means and what responsibilities there are when a marriage fails. Sadly it also affects a significant number of couples on a daily basis and that is unlikely to change anytime soon.