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Maintenance: each to his or her own

A month or so ago there was a lot of fuss in the papers about a divorce case, local to us, where the wife, who was a stay at home mum, had apparently been told to “go out and get a job”. Many commentators were saying the case heralded a sea-change in the way courts will deal with maintenance cases in the future. Now the fuss has died down, we thought a quick look at this case, and a consideration of its actual impact might be useful. Spousal maintenance is always one of those tricky areas of family law (are there any easy ones?) as it ties the former couple together long after they have gone their separate ways.

The case concerned an appeal by Mrs Wright, who had previously been married to a Newmarket-based equine surgeon. The couple separated in 2006, and in 2008 an order was made in their local court. This required their home to be sold and the proceeds divided, with Mrs Wright receiving a mortgage free home, where she lived with the couple’s two daughters.   Mr Wright was also ordered to pay his former wife and the children £75,000 a year to cover spousal and child maintenance and school fees. Of this Mrs Wright received £33,200 a year as maintenance for herself. This maintenance was expressed to be on a joint lives basis (i.e. payable until death of one party or until her remarriage).

Maintenance can be varied by court order, and in late 2012, Mr Wright applied to vary the payable amount downwards. He said his financial circumstances had changed for the worse, and that it was always envisaged by the trial judge (back in 2008) that Mrs Wright would start to make a financial contribution towards her own expenditure. The judge hearing his application agreed with him, both as to his finances, and that Mrs Wright had been on strict notice that she would be expected to make a contribution towards her own maintenance, whilst fitting that in with her childcare responsibilities. The judge said she had made no effort to look for work or to retrain since 2008.

The court ordered a scaling down of the wife’s maintenance between 2013 and 2019, with a clean break at that point. This was intended to allow her to improve her earning capacity (as a former legal secretary) as she gained experience and training, and her childcare responsibilities lessened.

The wife appealed the scaling down, arguing it was a joint lives order and should remain as such. She said it was not fair to assume she could become self-sufficient within 5 ½ years, and that her needs now and in retirement had not properly been assessed.

The single judge assessing her appeal in the Court of Appeal rejected her arguments, in the process giving us the headline grabbing sentence (verbatim from the trial judge): “There is a general expectation in these courts that once a child is in year 2, most mothers can consider part time work consistent with their obligation to their children.”

Naturally this has polarised the press – either it has been reported as utterly wrong to expect stay at home mums to go out to work as soon as their children hit 7, or it has been applauded as a victory against parasitic women being supported by their long suffering ex-husbands. The truth, as usual, is somewhere in the middle depending on the individual circumstances of each case.

We are not sure there is a “general expectation” in the courts about when parents should work. Being a stay at home parent is a full time job, so why would you retrain or go out to work as a second job? If you are unhappily married with a full time job looking after several children, does the press reporting make you concerned that if you divorce you will be expected to find paid employment as well as your 24/7 childcare job? Or you may be someone for whom work outside the home is rewarding in ways other than financial.

This case is not really the “sea change” the commentators claimed. It is only one case, where the circumstances of this family as assessed by the court according to the legal framework required the non-working parent to make a financial contribution. In other cases, the decision for one parent to have taken on a full time childcare and home-making role may mean maintenance continues to be paid. That is the beauty of our family law system – it is not one size fits all, but a bespoke system where each case is judged on its own circumstances.

A couple of genuinely interesting points did come out of this case. First, the husband was applying to vary the maintenance in advance of a change in his financial circumstances, i.e. before retirement. In accepting his case, the court has given a signal that planning for an ‘income changing’ event can be appropriate. Secondly, in many cases both former spouses have to work just to make ends meet. In the Wrights’ case Mrs Wright did not have to work just to keep a roof over her head, but the Court expected her to do so anyway.

So whilst there is no general rule that stay-at-home parents must work when their children are 7 years old, there is perhaps a trend to get former couples towards a clean break from each other by expecting each to stand financially on their own feet where at all possible, eventually.

If you would like to talk to us about maintenance or any other aspect of family law, please get in touch on 01223 443333 to make an appointment to see Tricia, Gail, Simon, Adam or Sue.