Head of Family Law and in-house counsel at Kuits Solicitors
Divorce (Financial Provisions) Bill received its second reading in the House of Lords in June 2014.
One objective of the Bill, which was introduced by Baroness Deech, is to limit maintenance payments to three years by making changes to the Matrimonial Causes Act 1973.
Currently there is no such cap in place and Judges are free to make Joint Lives Maintenance Orders under which one ex-spouse must make periodical payments to the other for the whole of their lives (save certain defined terminating factors).
The logic behind the current law was explained by Lord Nicholls in White v White, where he stated, “There should be no bias in favour of the money earner and against the home-maker and the child carer.” [1]
During a marriage a couple may often decide that one spouse should give up their career in order to look after the home and family and therefore it is arguably unjust to prejudice them upon divorce by limiting their maintenance.
Baroness Deech however feels that the law is outdated in the sense that it is still attempting to put women in the position they would have been in had the marriage not ended. She believes that the primary aim of maintenance should be rehabilitative as opposed to permanent.
Across the pond it seems that the courts are taking a similar approach to Baroness Deech as they appear to be moving away from “permanent alimony”- the American equivalent of joint life maintenance.
American family lawyer Morghan Richardson explains that judges in the US often have little sympathy for women who have given up their jobs to care for their children- especially when these judges are women themselves, who have placed their own children in child care in order to enable them to progress their careers.[2]
There are certainly risks attached to the removal of joint lives maintenance orders.
Spouses who are happily married may be reluctant to become stay at home parents or home-makers in fear that having given up their careers they will not receive adequate maintenance in the event that they divorce.
Worse still, dependant spouses may feel that they have no choice but to stay in unhappy marriages due to the fear that they would not be able to support themselves if they divorce. There is also the possibility for children of the marriage who live with the supported ex-spouse to suffer as a result of maintenance payments being terminated.
Despite the potential consequences listed above it is clear that the law as it stands is arguably unjust to the bread winning ex-spouse. The objective when dealing with financial distribution upon divorce is to ensure that a fair outcome is achieved.
Commenting on this objective Baroness Hale explained that, “a fair division is an attempt to give each party an equal start on the road to independent living.”[3] There is certainly nothing “independent” about joint-lives maintenance.
There also exists the potential for the home-maker to abuse their position. This is due to the fact that an arrangement that may have been suitable whilst a couple were married is often no longer appropriate once the marriage has terminated.
Yet the law does not seem to acknowledge this and countless cases have been reported where home-makers have received joint life maintenance orders by citing that they are unable to get a job based on the fact that they did not work during the marriage and do not possess the necessary skills.
Not only does the current law seem to be fundamentally unfair to the payer whose future plans can be stymied by this type of order but it also seems to do a disservice to the payee. Whilst joint life maintenance may seem appealing surely there is nothing more empowering than working hard to become financially independent.
It is entirely understandable for an ex-spouse who did not have a career during their marriage to be apprehensive about entering the job market. Of course it would be inequitable to cut off a dependent ex-spouse immediately without allowing for a period of adjustment and Baroness Deech acknowledges this with her suggested allowance of a 3 year maintenance period. During this time a dependent ex-spouse would be able to prepare themselves to enter the working world so that they can eventually become financially independent.
Instead of concentrating on building a case why one should be entitled to joint life maintenance perhaps it would be more productive for dependent ex-spouses to request monies that could be used to fund further education or skills training so that they are more confident and equipped to enter the job market.
Commenting on Baroness Deech’s proposals Katie McCann, Head of Family at Kuits states, “The principle behind the proposals seems to be a shift towards a more pragmatic, sensible and fair viewpoint on maintenance. As long as there are sufficient checks and balances in place to ensure that no-one is left in a precarious financial position and certainly no children and prejudiced. After all, there has to be life after divorce and that principle should apply to both parties.”
Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.
[1] [2000] 2FLR 891
[2] http://www.forbes.com/sites/emmajohnson/2014/10/27/are-you-a-stay-at-home-mom-facing-divorce-dont-expect-alimony/
[3] Miller; McFarlane [2006] 2 FCR 213 at Para 144