The papers have been full of commentary on the family case heard by the Court of Appeal recently, in which Tracey Wright, the ex wife of a highly paid horse surgeon, was told very firmly that rather than expecting to receive substantial on-going maintenance from her former husband she should “just get on with things” and “get a job”.
The original terms of the divorce settlement had been finalised in 2008 when the parties divorced. Both received a substantial amount of capital following the sale of their £1.3 million home, and Mrs Wright had been able to buy a £450,000 house mortgage free.
The order went on to stipulate payment to her of a total of £75,000 per year maintenance for herself and the children, and it was this aspect which Mr Wright had sought to vary as he is now approaching retirement.
The family judge agreed that it was unreasonable for Mrs Wright to make no real effort to find work for herself, and despite seeking to appeal this, Lord Justice Pitchford merely reiterated that she could not expect to carry on receiving substantial spousal maintenance.
An end to lifetime maintenance?
As this is now a determination by the Court of Appeal, it will no doubt be referred to as a “precedent” in local family courts around the country, and although the vast majority of cases going through our local courts do not involve anything like as much money, the principle is still the same.
Historically, the area of maintenance for a spouse (usually the wife) has been one of the most difficult to gauge when trying to advise about a divorce settlement. The principle that the spouse who may have been disadvantaged because of giving up a career to care for small children, or who for other reasons came away from the marriage with a much reduced earnings capacity – should then receive some ongoing financial support to assist them in meeting their living expenses – has been established as one of the “strands” of financial provision a divorcing spouse could try to claim, dating back to the Matrimonial Causes Act of 1973 (and indeed beyond).
The way that the law is interpreted in England and Wales is shaped not only by Acts of Parliament, but is also shaped and grows “organically” through the way judges apply certain principles to the facts of cases which go through the higher courts. Although the law is clear that the court has the power to make a “lifetime” maintenance order, it has been seen over recent years that increasingly judges are unwilling to impose this in all but exceptional cases. Part of this comes from a presumption that since the case of White v White 2000 a “yardstick of equality” should be applied to how the capital assets are divided – especially in longer marriages, and this in itself often goes a long way towards meeting the needs of the disadvantaged spouse.
Also it is a simple reality that these days more and more wives have qualifications and careers that they do not wish to sacrifice for child rearing in the same way that many would have needed to several decades ago.
If a claim for spousal maintenance payments is being pursued a court will have to carefully consider what the other division of assets such as property, money, and pensions mean in real terms. Put simply – you can’t have everything.
Then there needs to be a reasonable balance between expecting the husband (usually) to meet the cost of any residual needs, and allowing him an opportunity to move on as the marriage has now ended.
The court has been required to consider in all cases whether they should impose a “clean break” (an order where there is no spousal maintenance payable at all) since 1984. So why is a decision that a wife should be expected to earn her own living so apparently controversial?
Getting the right advice is essential
One opinion, put forward by Raymond Tooth, senior partner of Sears Tooth, is that the wife is simply being badly advised if she makes no real effort to go out and secure a job of any sort. I have to say (as a mother of three who has always worked full-time to ensure the bills can be paid) that I wholeheartedly agree.
The luxuries and decisions that a couple may be able to afford to have and make whilst together as a single household almost invariably have to be reconsidered once two households are required. To suggest that a wife should be able to expect to stay at home once the children are secured at school (and the original judge in the Wright case went as far as to say she believed that once the children are aged 7 or in year two at primary school) as a matter of course – is in my view a form of old fashioned sexism of the worst kind, even if the husband has historically earned significantly more than her.
Coming to a fair divorce settlement
There will of course always be cases where no other solution would be fair, especially if there are very few other assets and the main financial burden of providing a home for the children falls on her shoulders; then equally why should a husband expect to retain his income (save for child support) and walk away from the situation with no further responsibility. Or if there are real health difficulties to be taken into account.
Many cases will involve a split of capital which is not 50/50 – and the “disadvantaged” spouse (often wife) ends up with a significantly higher proportion, simply because there is no other way both parties (and the children) can be housed.
It may then come down to a matter of choices – more of the capital (so you can buy a house maybe and have stability now) and less or no maintenance for yourself, or the ongoing “tie” of monthly payments, and a strong residual financial dependency over a period of time. Many of my female clients say that is in fact the last thing that they want, especially as a spousal maintenance order can always be “varied” depending on the circumstances (and this is indeed what Mr Wright successfully applied to do). It may also impair other decisions you may want to make in your new life – for example a re-marriage would end the maintenance immediately.
Every single case is different, and the way a court may approach a settlement will always have to turn on the facts. But there can be no doubt that it has always been the case that there is a duty to “mitigate your position” – to try and find a way of paying for your needs yourself.
If the reality is that a wife has made obvious and real attempts to secure work, but hasn’t succeeded, and the husband has a much higher income and is always likely to have a much better lifestyle as a result, then the reality is that marriage is a contract which brings with it some remaining responsibility even when it comes to an end. Even before this case, there has been a trend for any maintenance paid for a spouse to allow for a reasonable “transition” to financial independence (often meaning in practice that it is paid for a “term” or a number of years, possibly reducing in the amount paid over time as the expectation is that the recipient stands on their own two feet financially, and then ending altogether).
But the days of expecting your former spouse to effectively be “a meal ticket for life” seem almost certainly now to be at an end. If they weren’t already.
Kate Butler
Divorce & family lawyer, Northampton
