Whilst you may not agree with everything that Mr Justice Mostyn says (and you will not be alone), it is always good to listen to him (or to read his words, as the case may be). The other day the Courts and Tribunals Judiciary website published the text of a speech given by him at the Devon and Somerset Law Society last October, and it does not disappoint.
The subject of the speech was spousal maintenance, and specifically: “Where did it come from, where is it now, and where is it going?” Mr Justice Mostyn answers these questions by tracing the history of spousal maintenance from 1857 (when secular divorce arrived) to the present day.
The pre-present day section of the speech is quite fascinating, but obviously the present day rationale behind spousal maintenance will be of more interest to readers of this blog. All I want to mention about the ‘old days’ is that, as Mr Justice Mostyn explains, the courts were then very much the ‘keepers of morals’ when it came to spousal maintenance, as demonstrated by a 1905 case in which the judge said that when considering whether to make a spousal maintenance order, and if so how much it should be for, “the Court should endeavour to promote virtue and morality and to discourage vice and immorality”. Thus, for example, an innocent wife would be granted maintenance, and a guilty wife (for example, because she had committed adultery) would not.
Thankfully, those days are now long behind us. Now, as Mr Justice Mostyn also explains, the most common rationale for imposing the obligation for one spouse to maintain the other into the future is to meet needs which the relationship has generated. For this reason, he says: “the factors of duration of marriage and the birth of children are so important. It is hard to see how a relationship has generated needs in the case of a short childless marriage, although this is not impossible.” The classic example of relationship-generated needs is where the wife gives up her career to bring up the family.
He goes on to address the topical point of why in our system, unlike others, spousal maintenance is not always for a limited period, and can last for the rest of the recipient’s life. The answer is that in some cases, such as where the wife has given up a lucrative career, the loss is irrecoverable. “For many women”, he says, “the marriage is the defining economic event of their whole lives and the decisions made in it may well reverberate for many years after its ending.”
Mr Justice Mostyn then goes on to set out his own summary of the relevant principles behind spousal maintenance, given by him in the 2014 case SS v NS (at paragraph 46). These principles, he says, seem to have withstood the test of time, and they should, I think, be compulsory reading for anyone with an interest in the subject.
But those principles do not go into detail regarding the assessment of the quantum of need. Mr Justice Mostyn points out that in three different recent cases the needs of the wife have been assessed at £25 million, £62 million, and the remarkable sum of £224 million. As he quite rightly says:
“Plainly “needs” does not mean needs. It is a term of art. Obviously, no-one actually needs £25m, or £62m, or £224m for accommodation and sustenance. The main drivers in the discretionary exercise are the scale of the payer’s wealth, the length of the marriage, the applicant’s age and health, and the standard of living, although the latter factor cannot be allowed to dominate the exercise.”
OK, like Mr Justice Mostyn I will end by returning to that morality point. Incredibly, as he explains, that moral outlook in relation to family law matters still exists in some quarters, despite being thoroughly dealt with by Sir James Munby, former President of the Family Division, who said:
“Judges are no longer custos morum [‘keepers of morals’] of the people, and if they are they have to take the people’s customs as they find them, not as they or others might wish them to be. Once upon a time, as we have seen, the perceived function of the judges was to promote virtue and discourage vice and immorality. I doubt one would now hear that from the judicial Bench. Today, surely, the judicial task is to assess matters by the standards of reasonable men and, of course, women.”
“Today, surely, the judicial task is to assess matters by the standards of reasonable men and, of course, women.” – If that’s the goal then they clearly fail. There is no justifiable reason to make indeterminate length spousal maintenance orders. If pensions are shared at the time of splitting then the longest that could possibly be justified would be until the retirement of the payer.
Given most of the world has fixed lengths of time for spousal maintenance payment based on length of the marriage and so on, there must be so much suffering in the rest of the world including Scotland, the ex-wives must be hounding their representatives to copy the English system, their societies must be grinding to a halt because they are so unfair. No the majority of the world is doing just fine with fixed length maintenance periods and as usual, the English family law system is the backward odd one out.