Spousal maintenance – where are we now?
When the Matrimonial Causes Act 1973 came into force there was no requirement to achieve a clean break between the parties to a marriage breakdown. That is to say, there was no requirement to dismiss financial claims for the provision of maintenance to the party with the lesser income. The payment of maintenance to a spouse was a common feature in a great number of matrimonial settlements in the 1970’s and 1980’s.
If we look at the history of the legislation it will be seen that maintenance came from an era when most women did not work. Our society has evolved over time and we are now in a position where most couples have to work to pay their mortgage or rent and household bills.
It is perhaps not surprising that legislation and the approach of the Court has adapted to address the needs and expectations of the modern generation, and its changing attitude to spousal support, sometimes referred to disparagingly by the media as ‘the meal ticket for life’.
The Matrimonial Proceedings and Property Act 1984 amended the Matrimonial Causes Act 1973 so as to impose a duty upon the Court to consider a clean break and the dismissal of periodical payments (maintenance).
Section 25A provides that on or after the grant of a decree of divorce
‘ . . . . if the Court decides to exercise its power under s23 (1) (a),(b) or (c); s24 or s24A in favour of a party to the marriage it shall be the duty of the Court to consider whether it would be appropriate to exercise those powers so that the financial obligations of each party towards the other will be terminated as soon after the grant of decree as the Court thinks just and reasonable.’
The question for the Courts since that time has been whether or not periodical payments are required, for life, for a fixed term (that is, limited to a fixed period, for example, whilst the children are dependent, or for a period to allow the party with less income to find work or improve their career prospects by retraining), or at all.
So where are we now? Where the payee is the primary carer of children or unable to work by reason of illness or disability and there is a disparity in the parties’ respective income positions, the payment of spousal maintenance is likely to be a requirement.
Term orders are unlikely to be imposed upon the party with lesser income where that person is in their mid to late fifties, unless they have substantial capital or pension to fall back on.
It is also probably true that in most cases the Court will prefer the payer to apply to the Court at a subsequent date for a downward variation or termination of the payments in the absence of agreement between the parties.
Recent case law reported in the media states that an Appeal Court Judge has supported a family court’s decision to wind down the former wife of a millionaire horse surgeon’s spousal maintenance award over the next five years, so that it ceases upon the former husband’s retirement. This was following the husband’s application to the Family Court last year to reduce the annual maintenance payable to his former wife. The Family Court Judge is reported in the media as saying there is ‘no good reason why the former wife should not seek work’. The former wife in this case is said to be aged 51 and their youngest child is said to be aged 10. The Court of Appeal Judgment of Lord Justice Pitchford has not yet been published but the media has reported him as saying the wife should go out to work and support herself now that her children have passed year two at school (that is, aged over 7 years).
The Appeal Court ruling will undoubtedly be replicated by Family Courts across the UK.
Article by Jackie Gifford, a Legal Executive and Mediator in the Family Team with over 25 years’ experience specialising in family law.
The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation