ABOLITION OF
MAINTENANCE
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The
argument is that the existence of maintenance perpetuates the fact that women
are dependent upon men.
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The
law tells wives that they will be entitled to financial support if their
relationship ends, therefore women are willing to take lower-paid jobs and
become dependent on their husbands.
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If
maintenance were abolished, it would encourage women to find adequately paid
jobs.
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O’Donovan has suggested that
the abolition of maintenance can only fairly be accomplished when there is
equality of division of labour during marriage, including financial equality;
there is equal participation in wage-earning; there are wages geared to people
as individuals and not as heads of families; there is treatment of people as
individuals by the state in taxation and benefit provision.
ORDERS THAT THE COURT
CAN MAKE
Income
orders
Periodical payments
order (PPO)
under s.23 MCA 1973.
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May
be weekly, monthly or annually
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Can
be secured or unsecured (against property)
However, Thorpe LJ in AMS
v Child Support Officer has said that secured PPOs ‘have been virtually
relegated to the legal history books’.
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Will
cease on the death of either party – unless the order is secured, in which case
it will continue after the payee’s death. It will also cease on the remarriage
of the recipient as the new partner is deemed to be financially responsible for
the recipient. Additionally, the court order may specify a specific date when
payments are to end.
Property
orders
There
are three main types of property orders:
1)
Lump sum orders
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A
lump sum order (LSO) requires a lump sum of money to be handed over by one
spouse to the other.
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May
be made to a parent for the benefit of a child.
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May
be paid in instalments.
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Often
used when considering housing issues, assuming one party is going to stay in
the matrimonial home.
2)
Transfer of property orders
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Orders
one party to transfer a share in the matrimonial home to the other.
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This
order could also be used to transfer other property, such as a car or piece of
furniture.
3)
Power to order sale
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Under
s.24A MCA 1973 the court can order the sale of property, whether it’s owned
outright by one of the parties or jointly by both parties.
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The
owner will usually be required to sell the item and then the proceeds are
divided between the spouses by means of a lump sum order.
Clean break order
When
considering which financial order to make, the court must consider whether to
make a clean break order. If a clean break order is not made, the parties can
potentially have further financial obligations placed upon them after divorce
for the rest of their lives. I.e. if husband wins the lottery, the amount he is
required to pay the wife may increase if there has not been a clean break.
Similarly, if she won the lottery, the husband might ask that the payments
stop.
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A
clean break order ends any continuing obligation between the spouses. However,
it should be stressed that the clean break cannot end the possibility that a
spouse may be liable for child support – it is only spousal support that can be
cleanly broken.
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A
delayed clean break order is also possible, i.e. after 2 years of periodical
payments
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S.25A
MCA 1973 provides the court with a duty to consider whether a clean break would
be appropriate in all cases, but it will certainly not always be preferable.
Benefits
of a clean break order: parties are free to pursue their own careers without
worry that it will lead to a variation of the order; there may be emotional
reasons i.e. feeling released from the marriage; if the recipient intends to
remarry it will ensure she does not lose out on payment; it avoids future
problems in the payment and collection of periodic payments. In Miller; McFarlane, Baroness Hale said
‘periodical payments are a continuing source of stress for both parties’.
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The
main advantage is that the court ties its hands and will not reopen the court
order.
A
clean break order is appropriate where
1) Continuing support offers to
benefit to the wife
2) Short childless marriages are
involved
3) Very wealthy people are involved
4) Both spouses have
well-established careers
5) There is antagonism between the
parties
A
clean break order is inappropriate where
1) There are still young children
2) There is too much uncertainty
over the recipient’s financial future
3) Where there is a lengthy marriage
4) The courts want to achieve
fairness
STATUTORY FACTORS TO
BE TAKEN INTO ACCOUNT
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Listed
in s.25 MCA 1973
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In
Piglowska v Piglowska [1999] the HL
accepted that different judges may reach different conclusions as to what the
most appropriate order may be in a particular case.
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In
White v White Lord Nicholls suggested
that fairness is the overriding purpose of the Act. This is the judges’
objective view of fairness.
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However
Miller; McFarlane said ‘fairness is
an illusive concept’
1) The welfare of children – the court’s first
consideration must be as to the welfare of any child who has not attained the
age of 18. Although Suter v Suter and
Jones clarified that although it is the first consideration, it is not the
overriding consideration.
2) Financial resources – in reality the
courts are mostly dealing with the debts rather than the assets of the parties.
All assets will be considered, even those which the parties owned before the
marriage.
NB:
the financial resources of a third party (i.e. a new boyfriend) cannot be taken
into account. However, the court can consider that a new spouse may be in a
position to contribute to the household expenses, thereby reducing her needs.
NB:
‘other resources’ considered may include income from discretionary trusts,
personal injury damages, or even inheritance received post-divorce.
B v B –held unfair to
divide assets equally on divorce after a 12 year marriage where all the capital
had been provided by the wife from an inheritance.
C v C – a husband was due
to acquire a quarter share in a substantial trust fund on the death of a 74yr
old widow. The court held that given that the woman was likely to die within
the next 15 years and that the husband was definitely likely to be entitled, it
was an asset that could be taken into account – had the widow been much
younger, it’s unlikely that the court would have considered it.
NB:
the court will consider both present income and any extra earnings that could
be gained by working overtime. If a person is unemployed then he or she may be
expected to find work. However, in A v A the
court held it was not reasonable to expect a woman of 45 to seek full-time
employment, although had she been much younger and childless the court may have
reacted differently.
3) The needs,
obligations and responsibilities of the parties – needs not be
restricted to those that arise directly from the marriage. The concept ‘needs’
is inevitably subjective. The courts have interpreted ‘needs’ loosely. The
needs of a rich couple are not the same as the needs of a poor couple. In F v F the court held that the wife
needed 3 houses! Reasonable requirements are not limited to essentials.
4) The standard of
living enjoyed by the family before marriage breakdown – this factor tends
to be relevant to rich couples in particular. In S v S the court heard that because the couple had been heavily
involved in horses during the marriage, the wife should be entitled to a sum
which allowed her to continue her love of horses.
5) The age of each
party to the marriage and the duration of the marriage – the shorter the
marriage, the less likely the court will make a substantial award.
In
Attar v Attar the couple had been
married for 6 months, so it was suggested that the sum must simply reflect the
amount required to put the parties back in the position they had been in before
the marriage.
However,
in C v C despite only a nine month
marriage, a child with significant health issues had been born into it;
therefore both a lump sum and periodical payments were ordered.
In
Miller v Miller a wife was awarded
£5million after a 3 year marriage, because the husband had made a significant
amount of money during that time.
Alternatively
in Krystman v Krystman the couple had
been married for 26 years but only lived together for two weeks, so no order
was made.
6) Any physical or
mental disability of either of the parties to the marriage – the most notable
case is C v C in which a husband was
badly disabled and so was entitled to £5million, even though the wife was
therefore left on social security benefits. The husband’s disabilities meant he
required constant care and complex equipment, thus he was entitled to all the
assets.
7) Contributions to
the welfare of the family – must first consider the position of the spouse who is
not earning, but has been working as the homemaker and child carer. White v White emphasised that the
division of labour must be considered but it was not important who earned the
money.
8) Conduct – at one time
conduct was considered to be very important i.e. an adulterous wife could
expect a low award. However it is now rare for conduct to be taken into account,
unless it is such that the court would be inequitable to disregard it. In K v K the woman helped her depressed
husband commit suicide as she wanted to acquire his estate.
