spousal maintenance

Spousal maintenance is a thorny topic.

Traditionally English law has recognised the concept of maintenance for life on divorce, with the breadwinner (male or female) expected to support the financially weaker party.

Recently however there have been a slew of cases suggesting this principle is falling out of favour and in practice there are often moves by the financially stronger party to achieve a clean break divorce if possible, or to limit the scope of maintenance payments rather than sign-up to open ended awards.

That is why all eyes were on the conclusion of the long running Mills v Mills saga this week which went all the way to the Supreme Court.

The Supreme Court had been asked to consider whether the court was entitled to decline to increase Mrs Mills’ maintenance payments to fund payment of all or some of her rent when her housing needs had been catered for in the original divorce proceedings.

Mr and Mrs Mills separated in 2000 after 13 years of marriage, divorcing in 2002.  At the time of their divorce it was agreed that their now adult son would continue to make his home with Mrs Mills.

The parties reached agreement on the financial claims between them, with Mrs Mills taking a total of £230,000 of the net equity of the family home (approximately 91%) and receiving maintenance payments of £13,200 per year.  The husband kept the parties’ shares in their surveying companies and £23,000 of cash from the sale of the family home.

Mrs Mills’ maintenance award did not include provision for rent, as it was anticipated she would use her capital award to purchase a mortgage free property.

Even though it was accepted by both that she had no ability to raise a mortgage, nevertheless later in 2002 Mrs Mills purchased a house for £345,000, raising the balance on mortgage.

What then followed was a series of property transactions where Mrs Mills “committed herself to borrowings which were too high”.  

These are neatly summarised in the Supreme Court’s judgment, but ultimately the result was that by the time Mr Mills applied to court to stop maintenance payments in 2015, Mrs Mills was living in rental accommodation, had no capital and debts totalling £42,000.

Mrs Mills cross applied, seeking an increase to her maintenance award, as she now had rental costs which had not been factored into the original award.

The decision of the first court saw the order remain at the rate of £13,200 per year with both parties’ applications failing. Both appealed, and in the Court of Appeal, Mrs Mills successfully argued to increase her maintenance to £17,292 per year, which included her shortfall in her rental payments.

Whilst Mr Mills was not permitted to appeal the decision that he should continue paying maintenance, he was given permission to appeal the decision to increase the maintenance award to cover the shortfall.  The Supreme Court allowed his appeal and effectively restored the maintenance to the 2002 amount.

The judgment makes clear that Mrs Mills’ housing needs had been catered for within the original capital award given to her in 2002 and that Mr Mills should not be expected to bear the consequences of his ex-wife’s poor financial decisions over the last 16 years.

Whilst these cases remain fact specific and the Mills v Mills decision does not totally bar future claims being made due to the court’s wide discretion, it does give us a strong indication of the law in this area.

Spouses seeking to increase their maintenance award to meet a need that was already catered for with a capital award face a tough test. Even though it was accepted that Mr Mills could afford to pay at the higher level and that Mrs Mills had a greater need, it was not considered fair that he should meet this greater need.

The question of fairness will play a key role in future cases looking at this point.

What paying parties may find disappointing about this case is that Mr Mills remains obliged to pay his ex-wife maintenance, even at the original level.  Mr Mills has now been paying maintenance for 16 years, three years longer than the parties were married and living together.

The question of how long maintenance should be paid remains unanswered and fact specific.  No doubt, the Mills v Mills case will be an incentive to those wanting to push for further change in the area of spousal maintenance. Many argue that a lifelong maintenance payment obligation is outdated and patriarchal and that the law should support financial independence between divorced couples.

For the moment the message is clear: whilst Mrs Mills is not required to move to full financial independence from her ex-husband, she must now meet her increased housing costs herself and cannot look to her ex-husband to meet her needs generated by the choices she has made; responsibility for these choices rests solely with her.

About Stacey Nevin

Stacey Nevin, an associate in the Family & Divorce Law team at Kingsley Napley LLP. She works on cases involving all aspects of family law including maintenance cases, private children cases and relocation cases.

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