In a recent case in the Court of Appeal, Wright v Wright the issue of spousal maintenance once again found itself in the spotlight. This is a vital issue for any Stay-At-Home Mother or parent thinking about reducing her hours. When you divorce, there is no longer an automatic right to a part of your husbands income. Courts now expect you to ‘Get on With it’, find a job and become self sufficient, especially when you have children older than five. Although it does still depend on your circumstances. Of course you are probably not planning on a divorce, however marriages do change over time and you need to be prepared for every eventuality. We asked Family Lawyer Jonathan West to comment.
The Case on Spousal Maintenance
The case involved an application by the husband, a millionaire equine surgeon, to reduce the maintenance payments that he was providing to his wife after their divorce. At the time of the hearing the wife was 51 years of age, the husband 59 and the children were 16 and 10 – the eldest being at boarding school.
Their marriage had lasted 11 years and after they separated Tracey Wright received a £450,000 mortgage free home and maintenance of £75,000 a year – of which £33,000 was spousal support for her own personal upkeep.
The question for the court was essentially what was a reasonable period of time for spousal maintenance to continue in the circumstances of the case.
UK and Wales Spousal Maintenance vs. Europe
In the jurisdiction of England and Wales, whilst for decades there has been a duty on courts to consider a clean break outcome in divorce, many cases resulted in substantive joint life orders, or nominal ones.
It is not at all uncommon for a spouse – statistically usually the husband – to end up paying periodical payments to the other spouse for a period often significantly longer than the marriage lasted.
Many European countries severely limit maintenance terms – for example Sweden, terms are ordinarily between one and four years unless there are “extraordinary reasons” for granting a longer period, which even then, where possible, would be time limited.
Move south wards to the Czech Republic, maintenance orders are incredibly rare – in 2001 statistics show that there were just 932 maintenance orders out of over 30,000 divorces.
In The Netherlands there is a maximum 12 year term and if the marriage has lasted under five years maintenance will be limited to a maximum of the same length of the marriage. Denmark operates a similar system.
Even our nearest neighbours, The Scots, operate a system whereby maintenance will usually only last for three years save in exceptional circumstances.
Recent Changes in the UK
Over the course of the last few years in England we have seen a retreat from the joint lives orders for maintenance which will (typically) only terminate when a wife remarries or dies.
In 2008 Sir Mark Potter said the wife had no right to keep on living at the same standard:
“… On the exit from the marriage, the partnership ends and in ordinary circumstances a wife has no right or expectation of continuing economic parity … A clean break is to be encouraged wherever possible.”
Lady Hale said partners are expected to be self sufficient:
“the ultimate objective is to give each party an equal start on the road to independence” and what she refers to as self sufficiency. She emphasized that the court was seeking provision that enabled a gentle transition for the payee from the standard of living enjoyed during the marriage to the standard that he/she could expect as a self-sufficient individual.
These judgements indicate that the court has been moving for some time away from lifelong orders to a more considered approach of guiding the parties towards independence from one another and self sufficiency.
The Outcome of Wright vs. Wright
Whilst we have been moving away from lifelong orders what is interesting from the Wright case is the language used by the Judge – Lord Justice Pitchford – who said that Mrs Wright must “just get on with it” when he upheld the earlier court’s decision to set a tapered reduction of the personal maintenance payments over the next five years. The judge expects her to take steps to obtain employment like “vast numbers of other women with children.”
Lord Justice Pitchford was of the view that it was “imperative that the wife go out to work and support herself” and that “The time had come to recognise that, at the time of his retirement, the husband should not be paying spousal maintenance.”
“The wife had done nothing since 2008 to look for work, retrain or to prepare herself for work.” He continued that, “There is a general expectation that, once children are in year two, mothers can begin part-time work and make a financial contribution” and that, “the order was never intended to provide the wife with an income for life”.
What it Means for You
This case could be the signal for many men to return to court to have a review of their maintenance payments. To counter this it would be prudent for non-working spouses to consider their employment sooner rather than later as it seems that courts will be looking for non-earners to maximise their earning capacity.
It would appear that a court will take a dim view of any non earning spouse arriving at court having done nothing to seek employment and moving towards self sufficiency. At the very least they should register with a headhunter or employment agency. That way if a party is not able to obtain employment they will at least have some evidence with which to repel any suggestion that they are sitting on their backside and living off the fat of the land.
This judgement is not likely to affect the ultra wealthy where maintenance is not an issue as the capital provided is sufficient in itself, but could well affect the mass affluent.
Maintenance must cover immediate needs but must also encourage a spouse to become independent. A joint life order discourages independence and also discourages people getting on with their lives by marrying a new partner. Why would someone choose to marry a poorer person than their spouse when they will lose the benefit of their substantive maintenance order?
I am not for one moment suggesting that responsibility for looking after a former spouse and children be thrown onto the state and the starting point is that it must be correct for the income earning spouse to support their family. However the meal ticket for life may just have been cancelled.
Author: Jonathan West, Head of Family Law at Prolegal Solicitors. Jonathan has written many articles and commented in various publications such as The Times, The Independent, Baby and me, Huffington Post, 50 Connect and has even appeared on BBC Breakfast as a Family Law expert.