Moving on from our recent blog Maintenance – how much do I need? in which we considered how “needs” might be determined when working out spousal maintenance, maybe what we should really ask is – should maintenance be payable at all?
As with many areas of family law, there is plenty of mythology around the basis of spousal maintenance – “he must provide me with a roof over my head” and the like. In fact, the court must always ask itself in every case whether there should be any maintenance at all. Can there be a “clean break”, an order which means that claims for spousal maintenance are dismissed right now?
Spousal maintenance vs clean break
Whilst you may think that having a court order which grants the payment of an amount of money each month for a number of years into the future is a good result for the recipient (very often the wife), the fact remains that any such order can always be altered. Either party, the payer or the recipient can apply to alter the terms of the court order and change the amount of maintenance paid. If the payer’s circumstances deteriorate or change, what had been envisaged as the future for both parties can end up looking radically different as time moves on.
My own experience as a divorce and family lawyer is that most people prefer to have financial independence as soon as possible, rather than take the risk that their ex will continue to be able to afford to pay. When you consider that I’ve seen examples where an ex will choose to give up work rather than pay, you can understand why a clean break can be a better option. Unfortunately reality means that it is not possible to make the resources which gave a combined household a particular standard of living stretch to give two separate households that same standard of living once separated, and often there simply isn’t enough capital to allow for a clean break at the point of separation.
The impact of remarriage and cohabitation on spousal maintenance
A spousal maintenance order will possibly be significantly varied (or may even be discharged) in the event that the recipient forms a new long lasting cohabiting relationship (depending on the new partner’s financial circumstances), and will certainly end if the recipient re-marries. Many are attracted by the idea that they may only have to pay something for the short term, if they think that their ex will move on with a new partner.
Trends in spousal maintenance
The recent trend in the way courts are dealing with spousal maintenance must also be borne in mind. Coming from a traditional background of wives commonly seeking ongoing maintenance throughout their lifetime (unless they remarry), and being viewed from afar as the “divorce capital of the world” – it may be quite a wake up call to learn that courts are now far less inclined to order substantial ongoing support.
One judge has taken quite a stand on this topic, stressing that wives should not be claiming that they have had a disadvantage in the job market because of choices they made during the marriage (such as staying at home to bring up the children). I am not quite sure how that follows personally, but it is being made perfectly plain that if wives can adjust to their new future circumstances without “undue” hardship, then they are expected to do so. Some “hardship” it appears, is acceptable.
Whether this heralds a new dawn of far more realistic aspirations for wives of how much they will receive in the future, or more likely, whether the trend will continue of capitalising as much of the possible maintenance claim wherever possible – remains to be seen. “Certainty” seems to be very much more in fashion in family law. But does this potentially risk us sacrificing “fairness”? We’ll have to wait and see.
Divorce & family lawyer Northampton