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This week, we thought we’d focus on a difference of opinion on a matter of family law that has come to light between a couple of our elder statespeople in family law. On one side, we have Baroness Deech, a former barrister and crossbench peer in the House of Lords who led the second reading of her new Divorce (Financial Provision) Bill at the end of January this year, and on the other we have Lord Wilson of Culworth, a Justice of the Supreme Court and author of some of the most notable legal decisions in family law over the last couple of decades. They don’t agree on the matter of maintenance after divorce.

First, let’s set out a bit of context for unfamiliar readers. At the end of a marriage, the court can make certain financial orders for the benefit of either spouse or the children of the family. These are: orders to make periodical (regular) payments or to pay a lump sum or series of lump sums, property adjustment orders for the transfer or settlement of property or for its sale, orders relating to pensions, and orders for the variation of trusts or other similar settlement arrangements. In making the decision about which of these orders may be relevant in the circumstances of each case, and the extent of the orders it should make, the court has to consider a list of factors set out in section 25 of the Matrimonial Causes Act 1973. The first consideration is always the welfare of any children of the family while they are under the age of 18. The list of other factors is:

a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h) the value to each of the parties to the marriage of any benefit . . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

This list is intended to enable the court to look at the situation holistically and to arrive at a just outcome for the individual, unique circumstances of the family by making the financial orders necessary.

The problem is that so many factors introduce a level of discretion that can lead to significant variation in the way different judges interpret the law. This generates uncertainty for people trying to get to a fair outcome, particularly if they are trying to agree without resorting to the court. Although experienced family lawyers such as ourselves usually have a good feel for a likely range of outcomes, there is no one ‘right answer’ that can be guaranteed at a court hearing.

Baroness Deech is seeking to remedy this uncertainty by introducing her Bill into Parliament. She would like the legislation simply to prescribe that the starting point in all finance on divorce cases is the equal division of property between spouses, and for maintenance claims (i.e. periodical payments) to be limited in time to three years from divorce, to enable the lower earner to adjust to new circumstances and find employment. She models her Bill on the Scottish system, which she considers to have been “highly praised”. You can read the debate on the Bill here.

Lord Wilson is not one of those who has praised the Scottish system. This week, he gave a fascinating address to the University of Bristol Law Club, which you can read here, covering the history of financial provision after divorce. He also tackled this very issue, calling it a ‘hot potato’ and observing that while maintenance payments can be a bone of contention after divorce, “The trouble is that it is usually unrealistic to tell a wife, left on her own perhaps at age 60 after a long marriage, that, following payments for say three years, she must fend for herself. So we judges have to strike a difficult balance.” James Turner QC, a leading family law silk, also queried in a letter to the Times yesterday whether the Scottish system really is ‘highly praised’, pointing out that even Lord Hope of the Supreme Court, the most senior judge from Scotland, considers that the Scottish law is in fact discriminatory against women.

A large proportion of Baroness Deech’s speeches in the House of Lords were taken up lamenting the unlikelihood of the government to move forward on this issue. Certainly, as most of the lawyers in Whitehall and its surrounds are currently taken up in the process of leaving the European Union, the reform of financial provision on divorce will not be a priority. However, for what it’s worth and despite the uncertainty inherent in the current system, we agree with Lord Wilson that a 3-year bar (with very limited exceptions) on the receipt of regular payments after divorce could significantly damage some people, mainly women, whose earning capacity and employment prospects may already have been damaged by decisions made during the marriage to take time out to raise the family rather than contributing economically; or who, at the point of divorce, may be unable for other reasons to participate in the workforce to support themselves. In individual circumstances, such a timescale may be fair, and the court already has power to determine this; but to apply it without exception would run the risk of significantly harming those who have taken time away from the workplace to look after families, and possibly also the children dependent on them.

If you’ve got any questions about spousal maintenance or any other aspect of family law, please do give us a call on 01223 443333 and arrange a time to speak to Adam, Tricia, Sue, Gail or Simon.