‘De-risking’ and financial exclusion
Should courts actively encourage maintenance recipients to strive to become more self-sufficient?
Maintenance or periodical payments - known as alimony in the USA – is the ongoing payment after the end of a marriage by one spouse to the other. In practice, maintenance is most often paid by a husband to a wife. Because of the ongoing financial relationship created, a maintenance order is the flip side of a “clean break” – a clean break ends the parties’ financial interdependence, a maintenance order continues it.
A maintenance order may be for a defined period of time (“term” orders), or for “joint lives”. Joint lives means that the obligation continues until the recipient remarries, the payer or payee dies or the court makes a further order. A joint lives order is, from the payer’s perspective, the most onerous of maintenance orders. To end the obligation, or change the amount payable, the payer must either reach an agreement with the recipient, or else apply to the Court to vary.
So, what type of maintenance order is suitable in any given case? At the heart of this enquiry is the question, “When is it reasonable in the circumstances of the particular case for the recipient’s financial dependence on the payer of maintenance to end – if ever?”
We often find Judges (particularly those sitting in Central London) reluctant to make term orders. This is due to their reluctance to “crystal ball gaze” – to look into the future and predict when the recipient of maintenance should be able to adjust, without undue financial hardship, to the end of financial dependence on the former spouse. Accordingly, joint lives orders tend to be the default setting.
In the cases which are not clear (where there are cogent arguments for a term maintenance order, for example, following a short marriage) should courts actively encourage maintenance recipients at least to strive to become more self-sufficient?
The most common question we face from the high-earning client who works extremely long hours in a demanding and stressful role and who faces the prospect of a joint lives maintenance order is along these lines: “Why should my former spouse be free to enjoy the benefits of my hard work and future endeavours without any encouragement to work towards reducing or extinguishing their dependency?”
Baroness Deech’s view on the approach of English courts to the maintenance issue has been widely reported. In her article published in 2009 ( Fam Law 1140, “What’s a Woman Worth?”) she observed: “The divorce courts are still trying to put women in the position they would have been in had the marriage not ended”. Whilst calling for urgent reform of the current law she said:
“My extreme view, which will never hold sway, is that no maintenance should be payable unless the claimant spouse is unable to work or has the care of young children. Her incapacity for work should be one for which there is no state support and which is also fairly attributable to cohabitation with the other spouse, and for which it is reasonable to expect him to pay… The primary aim of maintenance should be rehabilitative; it should be permanent only for older women and the incapacitated who are not cared for by the state.”
Baroness Deech’s views will no doubt be considered extreme by some. However, she raises important points about whether our approach to maintenance promotes dependency.
There is a tension between on the one hand “crystal ball gazing”, and on the other the risk of attempting to predict the future. The “safer” option might appear to be making a joint lives order, leaving the paying party with the onus then of applying in the future to vary or discharge the obligation. However, this could result in unfairness to the payer, and leave the payee with little incentive to reduce her dependency.
Arguably, a term order (which transfers the onus to the payee to demonstrate why she has been unable to achieve independence) would encourage a recipient of maintenance to strive to achieve financial independence. If, for legitimate reasons, the recipient requires ongoing maintenance, then the term could be extended. Perhaps this is fairer than having a default setting whereby a joint lives order is made in most cases simply because of the difficulty in forecasting the future.
Whatever one’s personal view, there are plenty of arguments which we can deploy on our clients’ behalves, whether acting for the payer of maintenance or the recipient as to what is the appropriate form of order.
Note: This article is based on an article written by Charlotte Bradley and Emily Moore for the Family Law Journal in July 2011.
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