The uncertainties of spousal maintenance

Divorce|December 17th 2014

A Scottish, French and English lawyer explain to a client how the law works in their countries in relation to spousal maintenance. The Scots lawyer says:

“You’ll get three years maximum and hard luck after that”.

The French lawyer just says:

“Hard luck”.

Finally, the English lawyer shrugs his shoulders, starts making hand gestures and says:

“Well it depends, there’s this and there’s that. And then of course, there’s something else”.

English lawyers will understand the latter remark perfectly and nod sagely in agreement, but clients are less impressed, and those who are representing themselves often wonder what on earth is going on. They might conclude that the solicitor uttering those words is as much use as “a wet weekend in Clacton”. That very phrase was used by someone at our firm’s Christmas party last night about the electrician who had come to the office simply to replace a light fitting. He shook his head and said he’d have to come back tomorrow.

So just how is spousal maintenance calculated in England and Wales and how long does it last?

If you are one half a divorcing couple worried about how much you will have to pay or how much you will receive, you won’t get very much help with this question by reading the law.

The courts takes all the relevant factors set out in Section 25 of Matrimonial Causes Act 1973 into account, and then divvies up accordingly. You also won’t get much in the way of explanation from the government. You might end up thinking that 50/50 is the norm and there is no maintenance payable and I have to stress, that is NOT the law. The law requires the reasonable needs of both the parties to be met out of the income and assets and that can and does usually require a different division.

So if you are one of the many who can’t afford to see a lawyer for personal advice, you could do a lot worse than read my book Divorce & Splitting Up. Inside you’ll find something like 86,000 pearls of wisdom on the end of relationships. It has been a best seller since it was first published in December 2012, and now a new edition is on its way. This is due for publication on 2 January and it will cost exactly the same as its predecessor – just 99p on Amazon Kindle, with all proceeds going to The Children’s Society.

Next year too there will also be judicially-endorsed help in answering the all important “how do I calculate spousal maintenance” question. The Law Commission reviews existing law (I was a member of its Legal Advisory Group in relation to precisely this subject) and its report to Government ultimately recommended clarification of the law, not change. The Matrimonial Needs Working Group set up thereafter and chaired by Mrs Justice Roberts will be publishing its clarification in the first part of next year. That should help a great deal.

In the meantime Mr Justice Mostyn has published a very useful judgement in which, as always, he doesn’t exactly mince his words. Nevertheless it provides a very fair guide to this difficult topic. I will leave it to you to read the facts, and his unredacted opinion of the wife, the barrister and the previous Judge.

What I am happy to publish here, is this paragraph from the judgement, one which I think is very helpful and gives guidance on the correct approach to be taken.

Pulling the threads together it seems to me that the relevant principles in play on an application for spousal maintenance are as follows:

  1. i) A spousal maintenance award is properly made where the evidence shows that choices made during the marriage have generated hard future needs on the part of the claimant. Here the duration of the marriage and the presence of children are pivotal factors.
  2. ii) An award should only be made by reference to needs, save in a most exceptional case where it can be said that the sharing or compensation principle applies.

iii) Where the needs in question are not causally connected to the marriage the award should generally be aimed at alleviating significant hardship.

  1. iv) In every case the court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable. A term should be considered unless the payee would be unable to adjust without undue hardship to the ending of payments. A degree of (not undue) hardship in making the transition to independence is acceptable.
  2. v) If the choice between an extendable term and a joint lives order is finely balanced the statutory steer should militate in favour of the former.
  3. vi) The marital standard of living is relevant to the quantum of spousal maintenance but is not decisive. That standard should be carefully weighed against the desired objective of eventual independence.

vii) The essential task of the judge is not merely to examine the individual items in the claimant’s income budget but also to stand back and to look at the global total and to ask if it represents a fair proportion of the respondent’s available income that should go to the support of the claimant.

viii) Where the respondent’s income comprises a base salary and a discretionary bonus the claimant’s award may be equivalently partitioned, with needs of strict necessity being met from the base salary and additional, discretionary, items being met from the bonus on a capped percentage basis.

  1. ix) There is no criterion of exceptionality on an application to extend a term order. On such an application an examination should to be made of whether the implicit premise of the original order of the ability of the payee to achieve independence had been impossible to achieve and, if so, why.

  2. x) On an application to discharge a joint lives order an examination should be made of the original assumption that it was just too difficult to predict eventual independence.

  3. xi) If the choice between an extendable and a non-extendable term is finely balanced the decision should normally be in favour of the economically weaker party.

Do note that in making his order, His Lordship first deducted school fees and child maintenance from the husband’s net of tax income, “since under Section 25 (1) Matrimonial Causes Act 1973 I must give first consideration to the best interests of the children”. He then used the resulting sum as the base figure for the spousal maintenance calculation.

If you’d like to discuss this complex topic, please send me a comment and I will do my best to reply.

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. Andrew says:

    Of course if the lawyer’s client is male the Scots lawyer says:

    “She’ll get three years maximum and you will both be independent after that”.

    The French lawyer just says:

    “Obviously you will both be independent”.

    Put like that both systems sound better than the English, doesn’t it?

  2. Nordic says:

    Andrew. What do you mean “sounds better than the English system”? Surely you can see that the English approach is superior in every way. First we encourage the parties to have a really good fight about the assets. Once we have got the juices flowing we then chain the, now warring, parties together for life in a joint lives order. In doing so, we fix what God and the church failed to do while ensuring a steady stream of “on-sells” for the selfless heroes in the family law industry. And the best thing is that in making sure mum and dad will fight for life, we are protecting the innocent children which is all we really care about.
    Family lawyers in Scotland, France, the Nordic countries, Germany and, well, almost everywhere else in Europe will testify to the superiority of our system. They are green with envy.

    • Marilyn Stowe says:

      Dear Nordic
      Mostyn J does actually discuss the point you are making overall, namely why spouses should continue to provide for the other post divorce in this judgement because the law states that the parties should be encouraged to terminate their responsibilities to the other as soon as possible post divorce.
      There is also a whole section devoted to this argument in the Law Commission report.
      Id urge you to read both.

      • Nordic says:

        Dear Marilyn,
        I did pick up that Mostyn J sought to develop some principles to guide award of spousal allowances, but my attempt at being witty got the better of me. Anyway, while his clarifications might help on the margins, they do not mark a fundamental departure from current unsound practices. Joint lives is a draconian and highly divisive order in a normal divorce which should only ever be considered for extreme long duration marriages. Likewise, award of a nominal pound as a “safety net” simply ensures that the parties remain stuck in a never ending divorce process. To grant one party a right to haul their ex back into court and force full financial disclosure years after their divorce is a deeply offensive practice which guarantees renewed acrimony.
        Such outdated practices only serve to make sure the couple keeps fighting “to death do them part”. In my view, the key principles underpinning a sound regime for spousal maintenance are:
        (1) Both parties should be regarded as adults (regardless of gender) and, as such, must expect to have to take care of themselves post a transition period. After this transition, the parties are independent individuals just like all other adults;
        (2) The rationale for awarding spousal allowances is to support this transition. By definition such payments must therefore be limited to a fixed term;
        (3) Once set, this term cannot be extended by the courts on any grounds. It is not the role of one party to provide an ongoing “safety net” to the other;
        (4) Children are not a valid argument for award of spousal maintenance (beyond a transitional period). Child payments are the instrument by which we compensate the parent with residence. Mixing the objective of child and spousal support only serves to muddy the waters and create unnecessary uncertainty; and
        (5) The level of support awarded should be a function of the income earned by the paying party and the relationship between support and income should be harmonised across cases. By the same token, neither party should expect to be able to maintain the pre-divorce standard of living.
        So, I guess I am with the Scots.

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