No ‘meal ticket for life’ by Jordan Constable

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Spousal maintenance is a phrase which can sometimes be referred to by the more glamorous Americanisation of ‘alimony’.

The court can order various different forms and formulae for spousal maintenance, including ordering a regular periodical payment that ‘ends’ on a certain date. These dates are often called trigger dates, and can be calendar dates such as ‘Friday 15th May 2015′, or ‘events’ such as when the youngest child of the parties graduates from an undergraduate degree at university. These trigger dates can be permanent, so that there is no possibility at all of maintenance carrying on beyond that point (often referred to as a Section 28 (1) (a) bar after the specific section in the statute which will end spousal maintenance). Or it may be extendable at the discretion of the Judge. It is important that the order isn’t allowed to simply run out before applying for an extension so anyone who is worried about this should check with a lawyer in good time.

The overall mandatory intention of the law, often overlooked, is for a court to try to help the parties of a divorce to achieve financial independence as soon as practicable following their divorce. For many who have not had income-earning jobs during marriage, this concept is often a bitter pill to swallow.

At a conference last week, a barrister uttered an insightful phrase which elucidated this concept to a lay client: “Divorce is not your meal ticket for life”.

This is a marked departure from courts awarding ‘joint lives orders’ wherein an ex-spouse could rely on their ex-partner to maintain them in the lifestyle that they had grown accustomed to during marriage. This approach has been venerated in the case of Mathews v Mathews, which makes an appearance later in this piece.

As such, orders with a bar against extension will provide for maintenance payments to end at a given point. These should then act as a means of incentivising a party who hasn’t traditionally worked to retrain and find work at the risk of having no monthly income.

A recent example of this was the case of Chiva v Chiva wherein the wife was awarded a periodical payment from her husband which terminated after 24 months, with the understanding that she would be able to make up the shortfall between her income and periodical payment by working an extra three days per week. For context, the wife worked seven days per month, and was awarded £700 a month from her husband; working an extra 3 days per month would make up this shortfall without a vast change to her lifestyle.

Mr Justice Mostyn summarised  maintenance in SS v NS, where he also made it clear that when maintenance comes to an end, the party receiving payment can be expected to endure “a degree of not undue hardship” making the transition to financial independence.

What was not clear from his comprehensive judgment was quite how enduring that hardship was meant to be. What is clear from Chiva v Chiva is that working an extra three days per month, which equates to almost 50 per cent more hours, was deemed reasonable or as Lord Justice MacFarlane put it: “readily achievable”.

Lord Justice Tomlinson further indicated in Mathews v Mathews that “Parliament has indicated that there should be a clear presumption in favour of making a clean break” be it an immediate clean break, or a delayed clean break when periodic payments cease.

One thing is for certain, Grocholewska-Mullins v Mullins made clear that parties should not be reticent in finding work or making the transition to independent financial stability. Lord Justice Ryder went as far as stating that “the wife has had more time than almost any wife I have encountered in the family courts to acclimatize herself to financial independence”.

Family law is in constant flux, and as these recent cases have shown, the judiciary appears keen to demonstrate now more than ever that ex-spouses need to stand on their own feet financially, as expeditiously as they can, following divorce.

However there is a caveat here. Each of the above cases was dealt with on their own specific facts, and spouses in receipt of maintenance who are simply in no position to earn a living should not panic. There will always be cases where self sufficiency is simply impossible. But as the above cases demonstrate, the courts will expect possibly more readily than hitherto that where income can reasonably be earned by a recipient spouse and fairness dictates that they do, then to work the former spouse must go.

As always, each case is dealt with on its individual merits and facts. No one case will by itself determine the outcome of another.

Photo by David Goehring via Flickr

 

Jordan is a trainee solicitor at Stowe Family Law’s  London office.jordan-constable

He completed the LPC at BPP Holborn in 2015, immediately following the GDL in 2014. He studied English at undergraduate level, at the University of Leeds.

Stowe Family Law Web Team

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5 comments

Rachel - May 2, 2015 at 12:42pm

It would be very fair if that were true, but in reality the courts still hand out joint-lives maintenance agreements that make one party entirely financially responsible for the other for life. In those cases, there is no onus or responsibility for the recipient to work towards financial independence.

John Macfie - May 3, 2015 at 8:48pm

In Scotland, where the clean break principle drives the philosophy of the legislation, it is a puzzle why the law of England and Wales so often ties couples long after divorce with long term maintenance orders. Here fair division of capital is the main thread of the legal framework and post-divorce maintenance is only awarded where capital division is inappropriate or insufficient to achieve fairness and where it is needed to deal with the financial burden of caring for children (quite apart fro child maintenance), or where there has been substantial financial dependance (where support is usually limited to three years from divorce), or where a party may suffer serious financial hardship (e.g. a wife in middle or late years who has little prospect of returning in any real sense to the labour market). Joint lives orders (or orders until death or remarriage) are seen here as simply prolonging the agony of marriage breakdown. In a society where so many lives are marked by divorce, one wonders if life, or other long term, orders really help families to reshape their lives and lifestyles after divorce and allow them to move on.

Nordic - May 4, 2015 at 11:19am

John,
It’s not just Scotland. The same principles underpins most other European jurisdictions (for example, it is also what happens in the Nordics). Common law has nothing to do with common sense.
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I think the answer to your puzzle is that family law systems which seek to create certainty and avoid litigation and acrimony in the genuine interest of families, do not deliver remotely the same level of revenue to family law professionals. Uncertainty, litigation and conflict equals money. English family law is not crazy, it is in fact highly rational and very effective when you understand the vested interests it serves.
.
Legal fees, not children, is the true paramount consideration.

Todd Stables - May 12, 2015 at 11:30pm

Can anyone comment on where Baroness Deech’s bill goes now? It seems like this has passed through various stages of parliament and now that parliament is in recess has it expired? How likely is it to be law – just opinions.

Andrew - May 13, 2015 at 4:08pm

With certain exceptions which do not arise here all Bills are lost at the end of every Session unless they have completed their passage through both Houses and become law.

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