Are wives divorcing with children encouraged a clean break by courts?

3 December 2010

A couple of weeks ago I was invited to speak at the annual family bar conference attended by 250 barristers, QCs and judges. One of the issues we discussed was the approach of the English courts on maintenance compared to other countries, including France.

A number of those attending the conference supported my view that the courts (particularly the Principal Registry, the main London court, close to where Kingsley Napley practise) are too generous regarding maintenance to wives. The court rarely attribute much, if any, earning capacity for the wife, and usually grant a joint lives maintenance order leaving the wife with little inclination to go back to work. As Baroness Deech commented in her 2 articles in Family Law (2009) this encourages a culture of dependency and does not take into account social developments where the majority of women now work or are expected to work.

In my experience (confirmed by the experiences of some of those attending the conference), it is now difficult (particularly in the Principal Registry) to obtain a term maintenance order, for example a term of 5 or 10 years, or until the youngest child has reached the age of 18. It is also difficult to obtain an order that provides for a reducing amount of maintenance, so as to encourage a wife to increase her earnings. LJ Ward in the case of C v C (1997) - a case where I was acting for the Wife - told us that we shouldn’t ‘crystal ball gaze’ which has been used to support the argument that term orders should rarely be made.

Geography within England and Wales is also relevant. It is understood by experienced family lawyers that, if you’re acting for a wife (particularly with children), it is better to issue proceedings in the Principal Registry, rather than elsewhere in the country, first to achieve a joint lives maintenance order and also to obtain a higher level of maintenance. While the differences of approach to maintenance orders are even more stark when comparing England to other countries (note that Scotland is more like France than England in usually restricting maintenance orders, to term orders, if at all) there are even differences within England itself. While there is no supporting statistics, anecdotally it is widely known that a clean break is more likely up north, west or even in the provinces than in London.

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