Liabilities are human beings: needs in divorce
By:8 commentsFebruary 9, 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
February 9, 2017
Categories: Finances and Divorce