February 21, 2024

The unknown future penalty: why spousal maintenance should not be capped after a set time period

Posted in Family

How much is a reasonable amount of spousal maintenance to pay to a spouse with a lesser or zero income, and for how long should it be paid?  These are questions put before local and high courts every day.

Unlike the division of capital, property and pensions which are shared equally on divorce unless there is a needs-based reason to depart from this yardstick, income is not automatically shared or equalised.  There are numerous considerations which must be addressed by the courts when assessing spousal maintenance including the ages and health of the parties, the marriage length, the needs of dependent children and the standard of living enjoyed during the marriage.  In addition, the intended receiver must demonstrate that the need for maintenance is dependent upon “relationship generated disadvantage”.

The need to demonstrate a “relationship generated disadvantage” automatically puts the financially weaker spouse at a disadvantage so I am concerned that the sway being seen amongst some of the higher court judges is that evidence of needs will not suffice unless it goes hand -in-hand with a demonstration that a degree of hardship will prevail.  In the words of Justice Mostyn “a degree of hardship” in transitioning to financial independence is acceptable – but why is hardship acceptable when only one spouse will experience it?

While the Court does have a duty to consider the termination of spousal maintenance as soon as is reasonably possible, and is increasingly making this a reality, there is a Bill travelling through the House of Lords which proposes to cap most types of maintenance to a five-year term only.  I strongly oppose this on the grounds that it will be easier for some more than others to achieve the desired financial independence and age will play a likely factor.  For example, it is unrealistic to expect a woman who gave up a lucrative career early on in her marriage to bring up children to return to the workplace in any meaningful way later in life when she may well be caring for children and/or elderly parents.

For many women, in particular, marriage is a defining economic event in their life.  The decisions made and consequences thereof during their marriage are not necessarily going to be recoverable within five years and for some they may never financially recover.  This is the unknown future penalty that is faced when marriage is entered.  Financial disadvantage on separation for choices made together during a marriage and an expectation it is just for one spouse to face some hardship while the other spouse is able to able to enjoy an income that remains substantially intact is a reality and will become even more prevalent if spousal maintenance is capped after a certain time period. Is that just and reasonable?

This piece was originally published in Edward Fennell’s Legal Diary on 16 Feb 2024.



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