‘Team Mrs W’
The main problem with the Mrs W ruling isn’t so much the idea that women should not rely on their ex-husband’s for spousal maintenance, but rather the fact that this case was the one chosen to make such a point, when the facts of it simply don’t lend themselves to such a decision.
Many cases have passed through the courts over the years where judges have reminded us that discrimination must not occur against the home-maker.
This has resulted in extremely generous awards being presented to stay-at-home mothers, and has even led to the UK being referred to as ‘the divorce capital of the world’. Many have claimed that such awards send women the wrong message, with Baroness Deech stating that women are taught that, once they get married, they never have to work. As a result of this, it appears that the court decided a stand had to be made to prevent women presuming they could claim a ‘meal ticket for life’, and this stand came in the form of the H judgement.
However, it is odd that a case involving a 51-year-old women was the one chosen to make such a point. After all, cases such as A v A (financial provision) have stated that it would be inequitable to require women of 45 to find a full-time job, even when they hold degrees. Yet here we have a woman nearing the age of retirement being told to get a job – and the discrepancy seems to be more about the judges making a point and less about them having considered the specific facts of this case.
A further issue with the ruling stems from the fact that it paints Mrs W out to have an aura of self-entitlement, which she allegedly does not deserve to have.However, it can be argued that it is in fact Mr W who appears self-entitled, as he wishes to have his cake and eat it too. No doubt the decision for Mrs W to forgo work and stay at home was one made by both parties, and this decision enabled Mrs W to support her then-husband so that he could climb the career ladder.
It is only with the support of his ex-wife that Mr W has been able to become one of the country’s leading vets, yet he now wishes to abandon their initial arrangement and get on with his life post-marriage. Yet the same is not necessarily possible for Mrs W, who, having taken over a decade out of the working world, cannot simply swan back into it and demand a job that could afford her the same type of lifestyle that she grew used to during the marriage – which, coincidently, is a very important factor for consideration under S25(2)(c) MCA 1973.
Lord Justice Pitchford makes reference to the fact that Mrs W has an earning capacity and therefore a responsibility to earn; however, this seems to miss the point.
Plenty of home-makers have an earning capacity, but that does not necessarily mean that working would be the best way for them to utilise their time. The fact that Mrs W may be capable of securing a job does not mean that it is appropriate for her to do so, given the arrangement her and her ex-husband made.
As mentioned before, his part of the ‘deal’ has allowed him to climb the career ladder, whilst Mrs W has stunted any potential career progression. Despite the fact that the marriage is over, the detrimental results of the arrangement to Mrs W’s career progression are permanent and a joint lives maintenance order is the only way to reflect this.
Lastly, Lord Justice Pitchford stated in his judgement that mothers with children over seven should be working. The main question being why seven is the magic number? His reasoning is likely to be based on the fact that, at this age, children become a little more independent; however, this should be irrelevant.
If a couple had decided whilst married that the stay-at-home party should return to work when their child reached a certain age, this would be one thing; however, if the arrangement was that the home-maker should remain at home indefinitely, then this should not have to change if the marriage ends in divorce.
Upsettingly, the law’s attempt to promote gender equality by stating that women (who are more frequently the home-makers) should be able to support themselves through jobs after divorce will actually result in further inequality. This is because, realistically, it will still be the home-maker-turned-worker who will take primary responsibility for the children, struggling to balance work and school collections, as well as having to take days off work when the children are ill. The other party, however, will likely continue to work undisturbed. If the law is really trying to promote equality, judges should ensure that childcare responsibilities are shared equally when both parties are going to be working.
Which H is right?
Ultimately, it seems that there are several very valid points in relation to both sides of the argument. Whilst an agreement had been made during the marriage, and the sacrifices made by Mrs W must be acknowledged, the law must also recognise the fact that the marriage has now ended and therefore circumstances have changed.
Commenting on the judgement, Katie McCann, head of the Family department at Kuits, states: “The benefits of the objectives behind The Divorce (Family Provisions) Bill, as discussed in our previous article can certainly be highlighted by the H case.
The Bill, which was introduced by Baroness Deech seeks to limit maintenance payments to three years. In this time, ex-spouses who took the role of home-maker in their marriage would have time to readjust, so that when the time comes for their maintenance payments to be terminated, they would be equipped to become financially independent and ready to enjoy life after divorce. Perhaps this ‘middle ground’ approach is the best way forward for all.”
  2 FLR 180
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.