07th Dec 2016

Get back to work!

By Harriet Burge

Get back to work! Is this the attitude of family court judges towards non-working divorcees? asks Family Law in Partnership consultant, Harriet Burge.

It certainly seems to be so following the case of Wright v Wright which hit the headlines back in 2015. In that case, Lord Justice Pitchford said that divorcees with children aged over seven should go back to work.

The facts of the case (school age children, a non-working mother and a father approaching retirement) are not unique. Mrs Wright, the ex-wife of a millionaire race horse surgeon, was told to get a job and stop thinking that she had the right to be “supported for life” at his expense. Mrs Wright had not worked since their divorce (despite having been encouraged to do so); relying on over £30,000 of spousal maintenance that her ex-husband paid her each year. Mr Wright wanted to reduce these payments given his impending retirement. Lord Justice Pitchford ruled that once the husband retired, he should not be paying spousal maintenance, noting that “The wife had done nothing…to look for work, retrain or to prepare herself for work”. In other words, her unwillingness to work was not a good enough reason to expect her maintenance payments to continue indefinitely.

The case caused a huge furore with many commentators arguing that this ended the “meal ticket for life” in favour of non-working divorcees and that London’s reputation as the “Divorce Capital of the World” would be challenged. But in reality, will the ruling have a significant impact on the attitude of judges in divorce cases?

There are few strict rules when it comes to dividing family finances on divorce, but a fundamental principle is fairness. The English courts have flexibility and discretion (by virtue of MCA 1973) both to the amount and the duration of spousal maintenance, balancing all the various circumstances to arrive at a decision which properly reflects the decisions made by the family during the marriage. Where possible the parties’ financial responsibilities to one another should be brought to an end and the court must consider how and when to cease any ongoing maintenance. The difficulty is establishing what is ‘just and reasonable’ in the particular case. A decision by Mostyn J in 2014 (SS v NS (Spousal Maintenance) [2014] EWHC 4183) reflected a growing move by judges to encourage the financial independence of both parties as soon as it is just and reasonable following divorce.

Should this move herald a radical review of the courts’ approach to maintenance payments on divorce? It is worth noting that in almost all cases in Scotland, maintenance will not continue for a period longer than three years post divorce. Certainly over recent years the courts have adopted a stricter approach towards spousal maintenance and policy makers, including Baroness Deech, have suggested a radical change to the handling of all finances on divorce, including spousal maintenance. The winds of change are blowing in favour of a framework of maintenance which promotes independence and moves more forcefully towards a defined clean break between the parties. Some family lawyers expect the Wright decision to lead to a flurry of applications (usually from the paying husband) to reduce or even cancel the terms of any joint lives spousal maintenance order on retirement or, indeed, earlier; possibly as soon as the youngest child reaches the age of seven.

However, the reality is that it can be very difficult to return to work when you have had years off to raise the children. It can be a daunting prospect, not only for woman over fifty (as Mrs Wright was). Finding a job that allows you to work flexibly enough to be the sole carer during the week and/or that pays enough to make it worthwhile when childcare costs are taken into account is not always easy. That being said, most would agree that it is fair and reasonable to expect a divorcee to return to work after a reasonable period of time as long as any financial settlement reflects the additional costs they may incur and the lower earnings associated with a (perhaps) part time role. Career counsellors and clinics can play a key role in providing much needed encouragement and support.

For wives in receipt of long term spousal maintenance, there is an element of dread in knowing that the longer they are out of work and the older they get, the harder it will be to re-join the workforce and that these changes increase exponentially the risk that their ex-husbands will challenge their obligations to continue paying maintenance. Have no doubt that there will be many husbands out there paying long term spousal maintenance who are eagerly watching to see how the law progresses on this issue. There is nothing like a ‘joint lives’ or seemingly forever spousal maintenance order to strike fear into a husband’s heart that he will be shackled to the effects of the divorce for the rest of his life.

For more information or for a review of your individual circumstances, please contact Harriet Burge, consultant, Family Law in Partnership:

E: hb@flip.co.uk

T: 020 7420 5000

Harriet is a consultant with Family Law in Partnership. She is a divorce and family law specialist with over 20 years experience. Known for her sensible, straightforward approach, Harriet’s aim is to help guide clients through the maze of decisions and consequences which flow from divorce or relationship breakdown at a pace and in a style which suits each client. Read more about Harriet’s practice here.