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28/07/2014 By: Nick Stone
When it comes to dealing with the financial consequences of a divorce, little divides opinion and gets people as hot under the collar as the thorny issue of maintenance payments after a divorce. You don’t have to be a rocket scientist to work out that a man who uses the term “meal ticket for life” to describe the ongoing financial support he is giving to his ex-wife is not exactly over the moon about the payments. But is maintenance between ex husbands and wives the norm? If you pay or receive maintenance how long is this going to be for?
At the end of February 2014 the Law Commission published a report that considered the law on maintenance in England and Wales. It didn’t recommend any change to the current legal principles that apply, but it did flag up the fact that there was inconsistency around the country about how the courts apply these principles and that it would help people going through a divorce to have a better understanding of what to expect. It therefore recommended that the Family Justice Council should produce guidance and work on this has just started. In the meantime, however, Baroness Ruth Deech has introduced a private members bill in the House of Lords which proposes radical changes to the way that all finances on divorce are dealt with, including maintenance. The chances of this particular bill becoming law are probably quite slim, but the simple fact of it being before parliament means that the debate is hotting up.
In theory, the current law on maintenance between ex-spouses (child support is a completely separate matter) is not particularly complex. The general principle is that wherever possible people who have divorced should be financially independent. Maintenance will only be relevant where one of the couple earns a fair bit more than the other and after essential expenses there is some spare cash every month available to help bridge the gap. For most families going through a divorce there simply isn’t enough to go around and maintenance will not be appropriate. Even when it is, it won’t usually be a “meal ticket for life”. It is much more likely to be paid for a limited, and possibly quite short, period of time designed to give the person who receives it the chance to adapt to life after the breakdown of the marriage.
In other cases maintenance might be justified, but instead of getting a monthly payment the spouse entitled to the payment will get more from savings, the sale of the house or a pension to compensate her for not having it. Maintenance will end on the death of either of the couple and stops automatically if the person receiving it remarries. Often, it will be reduced or end on cohabitation as well, although that is not guaranteed as it is on remarriage.
Baroness Deech’s bill argues that maintenance between ex-husbands and wives should be limited to a maximum period of 3 years. That is the position for divorcing couples in Scotland and in other countries around the world. In fact, in some countries there is no maintenance at all for an ex-spouse. The argument put forward by Baroness Deech and others for restricting maintenance is that being dependent on the payments is demeaning to women and if everyone knew that maintenance was either not going to be there at all, or paid for only a limited period, couples generally and women in particular, would make different choices during the marriage so that on divorce they would be able to manage without support. The competing view is that restricting maintenance in this way can cause significant hardship to women who may have given up their own careers for the benefit of the family and simply can’t hope to recover the lost ground when getting divorced, particularly after a long marriage and a long time out of the work place.
Whatever your personal point of view, the general feeling amongst family lawyers and other commentators is that things are changing. For a long time, we have been viewed as one of the most generous countries in the world when it comes to maintenance payments. It seems clear that the high point has been reached now and even if we don’t get a change in the law any time soon, the forthcoming Family Justice Council guidance and the publicity around Baroness Deech’s bill are likely to have an influence on the way in which courts and family law arbitrators approach maintenance. Couples need to take this new legal mood music into account.
Family Law Partner