No ‘meal ticket’ – making a fair deal palatable in spousal maintenance

A landmark judgement in which a judge told an ex-wife to ‘get a job’ is fuelling debate about whether a radical review of maintenance payments to former spouses is long overdue.

Spousal maintenance, which is quite distinct from child maintenance, is a payment made by either a husband or wife to the other on a divorce. It is most likely to be awarded to women as they tend to be the ones who have earned less during the marriage, or who have stayed at home to bring up children.

In his recent ruling in the Court of Appeal on the Wright v Wright case, Lord Justice Pitchford said divorcees with children aged over seven should be working for a living. His judgement on the case brought by top equine vet Ian Malcolm Wright against his former wife Tracey Wright, is now likely to be used by judges in family courts throughout England and Wales.

Growing numbers of husbands may go back to court to reduce or strike out existing maintenance orders for their former wives. Like Mr Wright, they may feel that original orders were unfair and that they should not be expected to support their exes indefinitely.

In some countries former spouses receive little or no maintenance, or it is awarded using a formula.  In England and Wales judges are able to use their discretion to decide how much an ex will receive – one of the reasons why London is seen as the divorce capital of the world.

This latest judgement highlights the need for separating couples to understand key issues which courts will look at when deciding on maintenance:

• The present income of both husband and wife, the value of any property and assets, and any future income, including the potential earning capacity of both parties
• Whether one party has stayed at home and been a long term carer of the couple’s children and therefore has been wholly dependent on their ex for financial support
• Whether a husband or wife has given up their own career. This might be to care for children, for an elderly relative or to support their spouse in his or her business
• The ages of any children. The judge in the Wright case sent out a clear message to ‘stay at home’ mothers or fathers that they should be looking for part time work once children reach age seven
• The couple’s standard of living before the marriage ended together with any benefits, such as private healthcare, that would be lost after a divorce
• Both parties’ financial needs and responsibilities
• The health of each person, including any disabilities
• Planned retirement age of the couple. Malcolm Wright told the Court of Appeal that he shouldn’t be expected to support his former wife on a diminished income after his retirement at 65
• A court has a duty under the Matrimonial Causes Act 1973 to consider if a ‘clean break order’ would be appropriate. This is where a husband’s or wife’s financial claim against the other comes to an end after a mutually agreed period.

The law regarding the flexible approach to maintenance in England and Wales could change.  Baroness Deech’s Private Members’ Bill, currently going through the House of Lords, proposes far reaching changes to all financial aspects of divorce.

If you have any questions or comments about spousal maintenance or divorce please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.