Maintenance after divorce

Not so long ago, after a divorce, the higher-earning spouse would have to pay the lower earner maintenance for life. However, in the words of Bob Dylan, the times, they are a-changing in the family courts and we look at how.

It is often said that our divorce courts are a bellwether for society. Certainly the decisions that Judges make about dividing assets and sharing incomes on the breakdown of a marriage or civil partnership are shaped by changes in what are perceived to be societal norms.

Until the year 2000 and the landmark divorce case of Mr and Mrs White, no matter how wealthy one of the spouses might have been, the settlement awarded to the claiming spouse (who, for linguistic ease, is referred to as “the wife”) would have been restricted to her financial needs. In taking her case to the House of Lords, Mrs White changed all that and now, where the assets are more than enough to meet each person’s financial needs, they tend to be shared equally on divorce. This often included maintenance for “joint lives” – broadly until first death or the wife’s remarriage. The increasingly generous provision made to wives since 2000 has led to London being hailed in many quarters, perhaps a little hysterically, as the “divorce capital of the world”. However, recent decisions suggest that judges are tightening up on settlements, less frequently making joint lives maintenance orders.

An early indication that judges would not make such generous maintenance orders came in a 2011 appeal case decided by Mrs Justice King. There was just less than £3.5 million available in capital which was divided broadly equally. The first judge had ordered the wife would receive maintenance of £47,500 per annum from the husband for the rest of her life or until she re-married. On appeal, the original judge was said to have failed, amongst other things, to have looked appropriately at the wife’s current and likely future income, the husband's ability to pay the maintenance and to take proper account of the wife’s capital assets from which she could meet her financial needs. The appeal judge decided that making a joint lives maintenance order had been plainly wrong and that the wife, who owned a mortgage-free farm, could (and would) become self-sufficient; and that she had a safety net of capital in the form of the farm. The appeal judge did permit a period of adjustment for the wife, ordering maintenance payable for just two years and five months.

Last year, the Court of Appeal made a decision which followed similar lines. Mrs Wright, the former wife of a racehorse veterinary surgeon, was asking for permission to appeal against an order which had been made reducing her maintenance. Lord Justice Pitchford refused Mrs Wright’s request saying that she needed to get a job and stop thinking that she had the right to be “supported for life” by her former husband.

So should wives expect to have to support themselves after divorce? Judges have recently been issued with guidance on financial needs in divorce from the Family Justice Council. This guidance backs the Law Commission’s aim to enable both spouses to move to financial independence on divorce but also agrees that, in a significant number of cases, independence is not possible because of age or other reasons. So, as is often the case, there are no definitive answers. However, the legal mood music does indicate that there are likely to be fewer generous maintenance awards in the future.