The Experts: Maintenance law must be clarified

Divorce|August 12th 2011

This is my latest post for The Times, which appears on The Experts blog.

Spousal maintenance is the most contentious area in family finance. Ex-husbands bitterly resent paying it and ex-wives fight tooth and nail to keep it. It is a tax-free income that some see as a continuing windfall and others a hard-earned necessity.

I wholeheartedly support the fact that judges have flexibility in deciding how to settle financial matters during a divorce, because a system based upon rigid percentage divisions can make for grave injustice.

However, every so often, judges dig themselves into holes. We have seen it with capital settlements to wealthy wives and also with pre-marital agreements.

Now we are seeing it again.

There is little judicial guidance on the correct period of time for maintenance payments to continue for less wealthy ex-wives. At what point should maintenance cease – if at all – during the joint lives of the parties, assuming the wife never remarries?

It all depends on the facts of each case and the opinion of the judge. Only if the judge is “plainly wrong” is his or her decision subject to appeal.

This problem becomes particularly acute when children are involved. Take a wife whose income prospects, unlike her husband’s, have been damaged following years of full-time childcare. Should she have her maintenance terminated before or even after the children have flown the nest? Should a poorer wife (unlike her wealthier sister, whose income claims have been bought off by a lump sum) be required to go to work, irrespective of the additional pressures it places upon her and her children? Should the husband or the father be entitled to keep everything he earns, despite the permanent disadvantage to the mother of his children?

The recent Court of Appeal case of N v N, innocuous at first glance, raises some very important issues to this extent.

Mrs N agreed to a fixed term of maintenance when she divorced in 2005, despite having two young children. When the fixed term was due to end, Mrs N’s circumstances and those of her children were such that she applied for an extension.

She represented herself, while her husband was able to afford solicitors and counsel. The district judge ordered that the term to be extended by little more than two years, to April 2012, by when her youngest child would still be a minor.

Mrs N appealed. The circuit judge set aside the original order, substituting a further term to August 2015.

A written application to appeal to the Court of Appeal was made by the husband’s lawyers and refused by Lady Justice Black. Mr N was then able to fund an oral hearing of the application at the Court of Appeal. Mrs N, representing herself, attended.

Lord Justice Thorpe granted permission for the husband to appeal. The judge praised Mrs N’s abilities in court, but then re-imposed the April 2012 order.

At least four judges have wrestled with the facts of this case so far. Each judge has their own opinion as to whether or not Mrs N’s maintenance should continue and for how long.

Mrs N is seeking permission to have her case heard by the Supreme Court, and perhaps – if this innocuous case advances that far – their Lordships will seize the opportunity to clarify the law.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. Does maintenance law need clarifying? « Family Law and Divorce Forums says:

    […] Family Law Administrator A recent post on the Marilyn Stowe blog argued that maintenance law needs clarifying for a number of reasons, […]

  2. Churchill says:

    One of the ‘sticks’ used to persuade divorcing couples from going to court is the uncertainty of the outcome – another of course is the hike in costs, especially if Barristers are called on. This can be a reasonable wake up call for some couples who may still have to unweave emotional pain from attempts to wrap up their financial affairs and move on. For these couples, reality may kick in just in time to prevent them going through unnecessarily expensive Final Hearings in order to gain not al lot more than is already on the table. However, some couples do not get to the negotiation stage. A friend is divorcing her husband. Separated for two years, they are reasobaly close in agreeing the capital split, but the husband will not enter into the spousal maintenance arena, despite his net monthly earnings touching the £20k mark (the wife is an employee director in the business they started together and will lose her job with earnings around £3k net per month) some time soon after the divorce/financial settlement. Flatly refusing to include SM and without sufficient capital to manage a clean break, the wife has had no real choice other than to ask initiate court hearings.
    Despite reading a number of judgements from cases regarded as similar in nature, if not scale, there seem few conclusions which can be drawn to give any confidence at all at the final outcome, should the case go all the way to a Final Hearing. Placing such trust in one judge, who has immense scope in deciding the financial settlement is unnerving to say the least. Added to the length of time the court process is likely to take, it is an unenviable position to be in.
    SM law does need to be clarified. Even if it can not be forseen with pin point accuracy, there should be sufficiently clear guidelines (for example with a simple income/needs/share of surplus income calculator) which would provide a sufficiently tight range of outcomes to give the applicant and respondant enough knowlegde to enter into meaningful negotiations. Court time would be saved, litigants’ costs would be minimised and above all, a transparency would be given to an aspect of law which is desperately sought by tens of thousands of participants every year.
    What efforts are being made to resolve this problem? Who cares enough to lobby for change?

  3. Graham says:

    Not me (he was probably a decent husband).

  4. Marilyn Stowe says:

    Take a look at section 25 Matrimonial Causes Act 1973 and try and apply it in your friend’s case.
    In the Chocolate Box summer competition, it has been suggested by one entrant that up to one half of the husbands income should be used to maintain the wife and children and that spousal maintenance should not have a cut off date given the twenty odd years of marriage in that case and the wife having given up her income to raise the family.
    Maintenance is a vital component of any matrimonial settlement. It is an entitlement that should always be carefully considered. Arguably it is more valuable in many cases than capital because it can be lifelong if the recipient never remarries.

  5. clare says:

    I am a follower of your blogs but how does a wife such as myself (previously employed by husband who has his own business) make sure that the maintenance will carry on after the children have left home, i was married for 28 years and rely solely on my maintenance payments?

  6. Churchill says:

    Hi Clare,

    I feel for your predicament. Whilst the key interest is always that of the childern of the family, I agree that consideration for spousal maintenance after the children reach maturity is also key to those involved. It seems reasonable that the maintenance will reduce – but by how much will depend on individuals’ circumstances I guess. The initial order might be for the period when the youngest child reaches a certain age, with a reduced sum payable, either for life, or for a fixed period, after that date. Depending on your circumstances (specifically if the court gave you ownership of the FMH) it might be possible to downsize to release capital, should you be able to manage in a smaller, less expensive property.

    My understanding is that the payer has to approach the court to apply for a change to the current order. That hearing should provide an opportunity to examine needs etc and hopefully results in a fair outcome. Your perceived ability to earn will also likely be a factor and even though you say you worked for your husband, you should have transferrable skills. Alternatively, maintenance might be awarded for a period sufficient to allow for retraining, should you wish to ‘change course’.

    You say you rely on your maintenance payments – do you work also? I doubt many would suggest it reasonable for your ex to fund, through maintenance alone, your needs, providing you have the ability to find employment (in an admittedly difficult market )

    What are youre expectations regarding ongoing maintenance?

  7. Churchill says:

    Hi Graham,

    Interesting view given that you don’t know any of the parties. Whilst I admit to being biased, the husband is not playing fair, refuses to accept fully disclose assets, all of which were accumulated during their partnership/marriage, refuses to adhere to Court requirements for additional information and feels his divorce is unique and that he deserves special treatment.

    Having a better understanding of where a settlement is likely to take a divorcing couple should not be beyond our legal system. Not having this can lead to unrealistic expectations and months, if not years of litigation costing tens of thousands. Anyone who believes this is the best we can manage must be bonkers?

  8. Updating maintenance law: how can we better define needs? - Marilyn Stowe Blog says:

    […] Readers of this blog know that paying ongoing spousal maintenance, particularly without a cut-off point, seems to be one of the thorniest topics of all. It touches raw nerves and emotions for everyone involved. Those paying maintenance regard it as a penal form of taxation, which affects new relationships for evermore. And recipients regard tax-free maintenance as their right, earned for their contribution during the marriage and “much needed” income, without which they cannot manage. […]

  9. Winston says:

    Justice seems to have been done for for this couple without going to the Supreme Court

  10. Question? says:

    my husband’s ex wife was awarded maintenance payments on their divorce ten years ago, until her retirement or re marriage. We have been told she has moved away to live with her new partner(still keeping her house) and has given up her job to do so. Could we now challenge the order? I had to give up my job a few years ago, and although we are financially okay it doesn’t seem fair that she can do this.
    Thank you for any advice –

  11. Anna says:

    What is likely to happen if the wife is ill (depressed and alcohol dependent), is barely functioning and the dr has said ’no one will employ her’. However she still tries to look for work on a few sober days to keep job start allowance. Does a doctor have to produce a statement for a solicitor? Or the court? Is her husband going to have to continue to provide maintenance for an alcohol dependent wife? She has no savings and at present is still in the marital home. There are no children and the divorce is underway at present.

    • Marilyn Stowe says:

      Dear Anna
      The wife will be assessed by the court on the basis of her reasonable need. If she cant reasonably be expected to work then that is a factor the court will take into account.
      Alcolhol dependency is also a factor. A court isnt there to punish a spouse for something beyond the spouse’s ability to control – it is there to assess need and order accordingly both in terms of income and capital, depending on the circumstances.

  12. rachel louise says:

    Dear Anna,
    Do u think the judge made the wrong decision on this one-
    Man cheats on wife, wife leaves. 2 children stay with dad.
    DAd owns 8 properties, 6 in negativity equity,1 owned outright.
    Dad has paid mortgage and car insurance and £80 per week to wife whilst she lived in one the properties owned.
    Wife has granted wife a 3 bed house (although she wont let kids stay over), car and a shop(worth 40K) and then £1000 a month maintenance.
    Dads p60 shows income of 26k and he is expected to pay ex wife £12 of it? and he has the kids!

  13. Cris says:

    Judges normally are fair but it is possible that they were given the wrong impression. If one has a prima facia evidence that the evidence was incorrect, one can always go back to the original judge for a re-assessment. Cheating will be caught sooner or later.

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