Associate in the Family & Divorce Law team at Kingsley Napley LLP.
Spousal maintenance is a thorny topic.
Traditionally English law has recognised the concept of maintenance for life on divorce, with the breadwinner (male or female) expected to support the financially weaker party.
Recently however there have been a slew of cases suggesting this principle is falling out of favour and in practice there are often moves by the financially stronger party to achieve a clean break divorce if possible, or to limit the scope of maintenance payments rather than sign-up to open ended awards.
That is why all eyes were on the conclusion of the long running Mills v Mills saga this week which went all the way to the Supreme Court.
The Supreme Court had been asked to consider whether the court was entitled to decline to increase Mrs Mills’ maintenance payments to fund payment of all or some of her rent when her housing needs had been catered for in the original divorce proceedings.
Mr and Mrs Mills separated in 2000 after 13 years of marriage, divorcing in 2002. At the time of their divorce it was agreed that their now adult son would continue to make his home with Mrs Mills.
The parties reached agreement on the financial claims between them, with Mrs Mills taking a total of £230,000 of the net equity of the family home (approximately 91%) and receiving maintenance payments of £13,200 per year. The husband kept the parties’ shares in their surveying companies and £23,000 of cash from the sale of the family home.
Mrs Mills’ maintenance award did not include provision for rent, as it was anticipated she would use her capital award to purchase a mortgage free property.
Even though it was accepted by both that she had no ability to raise a mortgage, nevertheless later in 2002 Mrs Mills purchased a house for £345,000, raising the balance on mortgage.
What then followed was a series of property transactions where Mrs Mills “committed herself to borrowings which were too high”.
These are neatly summarised in the Supreme Court’s judgment, but ultimately the result was that by the time Mr Mills applied to court to stop maintenance payments in 2015, Mrs Mills was living in rental accommodation, had no capital and debts totalling £42,000.
Mrs Mills cross applied, seeking an increase to her maintenance award, as she now had rental costs which had not been factored into the original award.
The decision of the first court saw the order remain at the rate of £13,200 per year with both parties’ applications failing. Both appealed, and in the Court of Appeal, Mrs Mills successfully argued to increase her maintenance to £17,292 per year, which included her shortfall in her rental payments.
Whilst Mr Mills was not permitted to appeal the decision that he should continue paying maintenance, he was given permission to appeal the decision to increase the maintenance award to cover the shortfall. The Supreme Court allowed his appeal and effectively restored the maintenance to the 2002 amount.
The judgment makes clear that Mrs Mills’ housing needs had been catered for within the original capital award given to her in 2002 and that Mr Mills should not be expected to bear the consequences of his ex-wife’s poor financial decisions over the last 16 years.
Whilst these cases remain fact specific and the Mills v Mills decision does not totally bar future claims being made due to the court’s wide discretion, it does give us a strong indication of the law in this area.
Spouses seeking to increase their maintenance award to meet a need that was already catered for with a capital award face a tough test. Even though it was accepted that Mr Mills could afford to pay at the higher level and that Mrs Mills had a greater need, it was not considered fair that he should meet this greater need.
The question of fairness will play a key role in future cases looking at this point.
What paying parties may find disappointing about this case is that Mr Mills remains obliged to pay his ex-wife maintenance, even at the original level. Mr Mills has now been paying maintenance for 16 years, three years longer than the parties were married and living together.
The question of how long maintenance should be paid remains unanswered and fact specific. No doubt, the Mills v Mills case will be an incentive to those wanting to push for further change in the area of spousal maintenance. Many argue that a lifelong maintenance payment obligation is outdated and patriarchal and that the law should support financial independence between divorced couples.
For the moment the message is clear: whilst Mrs Mills is not required to move to full financial independence from her ex-husband, she must now meet her increased housing costs herself and cannot look to her ex-husband to meet her needs generated by the choices she has made; responsibility for these choices rests solely with her.
About Stacey Nevin
Stacey Nevin, an associate in the Family & Divorce Law team at Kingsley Napley LLP. She works on cases involving all aspects of family law including maintenance cases, private children cases and relocation cases.