Maintenance orders differ throughout Europe. In the UK, for example, it is usual to award open-ended spousal maintenance orders. In Scotland, where there is a different legal system, maintenance is only payable for three years after divorce. In France, the maintenance period lasts for eight years and in Norway and Greece it is usually three years.
English law says wealth should be split equally between divorcing couples – even where one party is the main breadwinner – but are judges now expecting the financially weaker spouse to eventually go out to work and become financially independent? This is what the Supreme Court appeared to signal in June 2018 in the case of Mills v Mills – The Supreme Court  UKSC 38, which indicated the court was against increasing joint lives payments. The court ruled in favour of Graham Mills, who argued that he should not have to increase life-long monthly maintenance payments to his former wife who had used her 2002 divorce settlement to make unwise property investments.
Judges can use their discretion when deciding what they should award by way of financial orders. In doing so, they need to consider the following factors contained in section 25 of the Matrimonial Causes Act 1973:-
- The income, earning capacity, property and other resources which each spouse has or is likely to have in the foreseeable future.
- The financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future.
- The standard of living enjoyed during the course of the marriage.
- The parties’ ages and the length of the marriage.
- Any physical or mental disability of either spouse.
- The contributions that each spouse has made or is likely to make in the foreseeable future towards the welfare of the family.
- The parties’ conduct.
- The financial needs of any child.
The court will regard these factors equally and this, along with a judge’s discretion, often makes it difficult for family solicitors to estimate what a financial settlement will be. This is why it is preferable to try to negotiate a settlement between yourselves, rather than have a judge make the decision for you.
Reform to the Matrimonial Causes Act 1973?
There have been calls for changes to the act so as to provide greater legal certainty and reduce the reliance on judicial discretion for maintenance orders. There are points in favour and against. For example, in a statement made in 2018, the Ministry of Justice said:
“We are considering the evidence for reform for financial provision, making sure any proposals would not undermine protection for vulnerable spouses”.
Remember it is always best to try and resolve finances by communicating with your spouse. If not, the court will impose an order which may not be what you want.
If you are considering, or are in the process of separation and you need assistance on this or any other family matter, please contact us now. We will arrange a meeting with one of our family law experts to discuss your matter.
Author: Nicola Cancellara, family solicitor.