As featured in Canary Wharf Magazine, 1 January 2014
When dealing with financial matters between divorcing spouses, one aspect that the court has to consider is whether maintenance should be paid by one spouse to financially support the other. If the answer is yes then the court has to determine for how long and how much.
In recent times, we have observed what seems to be a "hardening of attitudes" from judges when making orders both with regards to the length and also the amount of spousal maintenance. This even applies to cases involving very small children when historically in such cases life time maintenance orders were made as a matter of course.
Two recently reported decisions demonstrate the changing attitudes of the court. In the first case, the wife was awarded £47,500 maintenance per annum for life. The husband appealed successfully; the wife's maintenance was reduced to a period of 2 years and 5 months. The Court of Appeal felt that the wife had an earning capacity and the Judge who made the initial order was criticised for not explaining or justifying why he had given maintenance for life.
In the second case, the wife was awarded 70 per cent of the capital assets together with 4 years of maintenance. The husband's appeal was successful; it was unfair for the wife to receive maintenance as well as the "lions share" of the capital and her maintenance claims were extinguished.
As well as looking at the length of the maintenance the court has to consider how much is paid. Again, in recent cases, there has been an opinion given by the High Court to say that the amount should be based on "need alone". During the proceedings, both husbands and wives prepare a schedule of income needs which is subject to much scrutiny during the case. Although the courts position seems to be toughening up it is still the case that needs are:
"… elastic in concept and there is much room for the exercise of discretion in their assessment."[per Mostyn J in B v S  EWHC 265]
The Judges retain discretion, which makes family law anything but black and white.
We are unsure why there has been a shift in the position with regard to maintenance. Perhaps it is a mixture of things. Previous awards were deemed to be too generous and there was a general feeling that the pendulum had swung too far in the wife's favour. The economic climate has clearly been biting the breadwinners harder than ever and perhaps there is an acknowledgement of how hard people have to work to earn the amounts paid in spousal maintenance.
The fact that women, even with young children, should not be entitled to expect a meal ticket for life solely by virtue of the marriage is very much the message which is being given.
If you are unsure as to your position or require an overview of your financial position or what your entitlement would be on divorce then please contact Mary-Ann Wright, family partner at national law firm DWF on 0207 645 9583 or email email@example.com.
Our London office is local to Canary Wharf at:
DWF LLP, Capitol House, 85 King William Street, London, EC4N 7BL.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.