Liabilities are human beings: needs in divorce

Divorce|February 9th 2017

The story of the 50 year-old Surrey man who was supposedly told by the Court of Appeal earlier this week that he must support his ex-wife ‘for life’ generated predictable controversy and headlines.

The couple had married in 1988 and eventually went their separate ways 15 years ago. In their divorce she received a significant lump sum and monthly maintenance payments. However much of the capital was subsequently lost in a series of “unwise” property investments and she found herself struggling to make ends meet.

The ex-husband eventually applied to reduce or eliminate the monthly maintenance payments but rather than grant his application, the Court of Appeal instead insisted that the payments be increased, from £1,100 to £1,441 per month, because she was unable to meet her “basic needs”.

And that is a key point: it was the judges who made the decision to increase her maintenance. Not her.

But misleading, clickbaity headlines painted a picture of a selfish gold digger who had arbitrarily dragged her ex back into court just because she fancied extracting some more money from him. In a statement subsequently released by her legal team, she spoke of the distress she felt at one-sided media reports and the “online hate mail” that has been thrown her way since the news broke. She stressed that it had not, contrary to many claims, been her who had launched the legal action at all.

“It should be noted that since the divorce 15 years ago, I have never returned to the court to increase my maintenance, despite my financial difficulty and bad health and low earnings.”

And you know what? I don’t blame her for her distress and feel nothing but sympathy for her plight. I write that statement knowing full well that it will go down like a lead balloon with some of our regular readers. The law is clear and on her side. The Court of Appeal will have looked at her circumstances and concluded that she faced  “undue hardship” if the maintenance was reduced or stopped. That is the test set out by the requisite law, section 25A of the Matrimonial Causes Act 1973.

Yes, this requires the court to impose a clean financial break between the former parties to a marriage whenever possible, in order to bring their financial obligations or dependence on the other to an end as soon as just and reasonable.

But when that can’t happen, because one party still needs an income, then the courts must consider how long maintenance should continue and must also decide when it should or could end  without incurring that “undue hardship”.

The family courts cannot award two lump sums and despite sensational reports, she is not being compensated for the loss of her capital. Instead the court was considering her relatively modest income requirements and, it seems, adjusting her maintenance for inflation – apparently for the first time in 13 years.

The husband in the case no doubt wanted to move on with his life and put the past behind himj. If he had come to me I would have advised him if possible to settle and offer a lump sum to buy off her maintenance. This can be done under section 31 of the Matrimonial Causes Act. Instead he took a legal gamble over a relatively modest continuing  payment and will now face a significant costs bill.

The fact remains that this was an appeal. I suspect the first judge took a hard line against her because the wind is blowing in a certain direction, away from supporting ex-wives for life, and it has been since the 2000s. We’ve seen an increasing number of judgements in which wives are held to bad deals imposed in prenuptial agreements or in which they have their maintenance abruptly ended

But the Court of Appeal will still apply the existing law, and they found that the first Judge had erred in this case.

It may be the usual scenario but it should not be forgotten that the wife in this case was the parent with care, looking after the couple’s child who was still young at the time of the split. It’s easy to forget the extent to which looking after a little child hinders a parent’s freedom of movement and ability to earn money at a crucial time in her career, whether that is actual or just potential. Her status as a parent with care and a low earning capacity gave her priority in the couple’s financial settlement. No doubt she did her best to increase the capital she had been awarded through investments that in the end proved ill-advised.

The ex-wife clearly has needs and relatively speaking they are low but undoubtedly her income capacity has been hindered by her family role. In this country we recognise that this a common consequence of marriage, particularly (although not of course exclusively) for women. We don’t permit the richer party to just walk away and start again regardless of this financial imbalance. And long may that remain the case. Liabilities are human beings.

Image by Wapster via Flickr under a Creative Commons licence

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. Ned says:

    Alright, so the wife was not to blame for the case landing back in court. But what about her unwise investments? Should the husband have to finance HER silly mistakes, long after the divorce? So it is the LAW that is to blame!

    Because even with the gender divide, it is unlikely that all women are saying “Ra! Ra!” to this decision, since it seems basically UNFAIR. What if the situation were reversed — and she became rich from her investments, and he went DOWN in life?? Would the court then allow HIM to make a massive claim against her? (Okay, she herself was not the one to claim — which is why I am saying it is the LAW that is at fault!) Because you can bet no judge would award a man any money at all from his then-rich wife.

    If he did, there would be an outcry. Exactly as there has just been. Clearly it is the law which is at fault.

  2. OMG says:

    It is understandable that Marilyn Stowe would write a long piece defending the woman in this case. I agree to that part, as it turns out the wife had not started the action. (And she certainly did not deserve to be vilified when “not guilty”.)

    So, it was simply the husband wanting to reduce his maintenance payments. But so what? The case should simply have been thrown out. The wife was in “dire straits”, maybe, but he was no longer RESPONSIBLE, and certainly not responsible for HER unwise investment decisions after divorce.

    These sort of legal decisions may be described as “fair” by some — but inevitably, they are putting more nails into the coffin of “marriage”: Men are simply becoming less and less likely to tolerate it. And if there is a possibility it could turn out to be a “life sentence” — who would?

    • Marilyn Stowe says:

      Dear All
      If it helps you, these cases are uncommon and as more women work and have children at the same time and therefore maintain an income capacity, they will become less common still.

  3. Rebecca says:

    It’s so disappointing that as a lawyer you can suggest that this a good outcome for gender equality – quite the reverse. I agree with all the above comments it is simply outrageous that a man can remain responsible for a women more than 15years after the marriage. It does not help women at all that law is so one sided and pro women in terms on finances on divorce. No doubt the poor women is devastated to be dragged through the media like this but it simply should not be allowed to happen. The law should allow for women to set up on their own and have a period of transition to independence through a lump sum and maintenance payments for a limited time. The lady here should have been made aware of her responsibilities at the time if the original divorce. By allowing women to sit back, make poor financial decisions, have no obligation to work and then have no accountability for that as they can rely on their ex -husband of 10 years+ to bail them out goes against all the huge improvements in gender equality! What kind of example is that to future generations? ‘Don’t worry girls – get married then get divorced and you’ll never have to work again. And boys – watch out, you’ll love doubt have to end up supporting a woman for the rest of your life as the law seems to think they are incapable of standing on their own 2 feet’!! If that is the law then women might as well stay at home shackled to the kitchen sink. There are so many opportunities for women these days it is such a shame that the law is dragging us back to the 1950s.

  4. Yvie says:

    Very well put Rebecca. I agree with every word you say. This lady is only 50 years of age, so why can’t she get a full time job and pay her own way. Surely a lump sum plus 15 years maintenance is enough for any ex husband to pay. He has done his fair share,

  5. A very strange case says:

    Yes, it should always be about the child, but, upon terms of equality, surely, this case says Farmer too much.

    Perhaps, the most obscene case I read, related to an ex husband, divorced and made good thereafter.

    After divorce, how can he be made to provide when previously, they had nothing ?

    We all endeavour for equality, but, women are relying on men financially and surely, it’s wrong ?

    The commitment of marriage & parenting should be loving and equal.

    Men are far from equalling parenting wise, why ?

    The bias toward women is strange, when most are capable of achieving success.

    Equality ?

    The spectrum is so one sided.

    Your a woman… we support you. Your a man.. Well, factually, we are treated very differently and predominantly in a lessor capacity.

    Why ?

    Equality.. feminism… ?

    What do women want ?

    Everything really.

  6. JamesB says:

    I agree, very strongly, with Rebecca.

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