The calculation of maintenance on divorce – whether there should be any at all, and if there should, how much and how long for – has long been a thorny issue of debate in family law. Unfortunately there’s no such thing as a divorce maintenance calculator in the UK, so anyone looking to secure fair maintenance on divorce, or facing a claim for maintenance, will need specialist advice from a family lawyer and I’ll explain why in this blog.
Maintenance is generally divided into two categories – child support – which is calculated using a (rather complicated) formula applied to the payer’s income, and spousal maintenance (called “alimony” by those over the pond) – which is not calculated in any regular manner at all and can vary significantly from case to case.
Spousal maintenance, need and court decisions
Historically, spousal maintenance has always been referenced to “needs” rather than “entitlements”. Other concepts - such as sharing - which may apply to capital built up during the marriage do not apply to ongoing maintenance provision in the same way. Trying to advise a client confidently as to how much will be reasonable is often a difficult juggling act, bearing in mind also that there may have been other imbalanced divisions of say property or pensions as part of the overall divorce settlement.
There have been a flurry of cases through the higher courts in recent years which seem to show that judges are tending to favour a limit on wives expecting their former husbands to be “a meal ticket for life” – expecting them to fulfil their own potential, and treating spousal maintenance as a transitional aid to the recipient achieving their own financial independence. But the wide reaching discretion that the court has to decide what is fair means that for many, our jurisdiction remains “the divorce capital of the world”, especially for wives who believe they may obtain a more favourable outcome than elsewhere.
The future of maintenance in the UK
The Law Commission was asked to investigate the issue of how to quantify spousal maintenance dating back as far as 2009. In 2014 their report “Matrimonial Property, Needs and Agreements: the Future of Financial Orders on Divorce and Dissolution” was published following considerable debate, and a consultation process.
One of the clear outcomes was the question - “what does the term ‘financial needs’ actually mean?”. Many of those who fed back to the commission reported wide variations – from judge to judge, and also geographically within England and Wales as to how courts approached the calculation of spousal maintenance. It was clear to the Commission that any meaningful understanding by the general public of how such matters would be approached was impossible. This hardly sits well with the general emphasis on encouraging people to try and find their own, non-court, solutions to family law issues.
The report gives three possible routes to resolve this – firstly a “relationship-generated need” approach. The idea would be that if (traditionally) wife has given up or taken a step back in her career to bring up the children, but husband has continued to earn as before, the wife should be able to claim maintenance for herself as an entitlement, based on compensating her for her loss. This may sound fair – but in practice it will always entail a certain amount of guesswork as to how a career path may have panned out, and it assumes a wealthy payer (husband) and a poorer payee (wife) – this is not always the case in modern times.
The second approach is “unravelling the merger over time” – this stresses the more complicated intermingling of life and resources the longer a marriage goes on for – and would involve looking to compensate the “poorer” party for any disparity in their disposable income and lifestyle at the time the marriage ends, rather than trying to compensate for “what might have been”. However, this may entail there being numerous “policy” decisions made to be taken into account to aid calculation, it may be difficult to take into account other imbalanced divisions such as capital, and there will still always be those “exceptional” cases where the outcome would appear to be unfair.
The third approach is, simply, to use a formula.
That may sound very sensible, and as the Child Support Agency (or now the “CMS”) has been using this approach for years, why not roll out a similar method of calculation for spousal maintenance too?
The report goes further still, setting out two alternative models – one which is fairly rigid and gives a firm result, the other which gives more of a range of outcomes. However, is it right to “sacrifice fairness for certainty”?
Interestingly the lawyers who fed back to the consultation generally stressed that they did not want to see a change which undermined the court’s overarching discretion completely. It would be interesting to hear from clients, and the public at large, as to whether they agree.
As to the future – we have attempts such as those by Baroness Deech to change the law, in her Private Members Bill within which maintenance would be dealt with in a similar way to Scotland, with a definitive time frame limited to a maximum of three years of payments. As Parliament has now been disbanded in the lead up to the General Election, that Bill may not progress further. The Law Commission report advocates the development of a working group to examine the possibility of developing a formula in more detail. They envisage, however, that this may take some 5 years to complete. The wheels of justice continue to turn as slowly as ever. In the meantime my advice is that you get proper advice on the pros and cons of spousal maintenance over a clean break and don’t agree to anything that puts your, or your children’s, future at risk.
Divorce & family lawyer, Northampton