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May 27, 2015updated 01 Feb 2016 10:37am

It's dangerous to assume that Wright v Wright sets a new maintenance precedent

By Spear's

Wright v Wright seems to herald a divorce revolution, sending the poorer partner back to work. But it’s never that simple, say Suzanne Kingston and Jemma Thomas

In 1973, Lord Denning, hearing a case about spousal maintenance in the Court of Appeal, said: ‘When a marriage breaks up… the husband will have to go out to work all day and must get some woman to look after the house… The wife will not usually have so much expense… She will do most of the housework herself… Or she may remarry, in which case her new husband will provide for her.’

A lot has changed since 1973. It is now more common than not for mothers to return to work after having children (and of course to have careers in the first place). Consequently, the court’s expectation of what is reasonable and achievable has changed. This is clear from the recent Court of Appeal decision to refuse Tracey Wright permission to appeal the decision that her maintenance should be reduced and then dismissed.

The reason the Wright case has gained so much press attention is that it was reported as though a new rule had been created. In fact, there are very few strict rules when it comes to dividing family finances on divorce, but a fundamental principle is fairness. The courts have to balance all the various circumstances and consider the correct approach — in this case Mrs Wright was given the time to adjust but ultimately had to take financial responsibility for herself. Both parties needed to shore up their financial positions in preparation for retirement, particularly as their younger daughter would continue to need support after Mr Wright’s retirement.

Mrs Wright had been told in 2008, when the parties divorced, that she should make attempts to find work, and this message was now being delivered (seven years later) with more force. Perhaps if Mrs Wright had demonstrated her efforts to find a job to the court, or could show that she had assessed childcare costs, she might have argued more persuasively that Mr Wright’s view of her job prospects were not realistic.

The law is clear in terms of its ideals: 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. However, the difficulty comes in working out what is just and reasonable in the particular circumstances and this is at the discretion of the individual judge.

In the case of Murphy, reported last year, the judge ordered maintenance for the wife for joint lives and explained that ‘the economic impact on this wife is likely to endure not only until [the children] leave school but, indeed, for the rest of her life.’ That case was different on the facts, so the court’s approach was different.

The concept of making maintenance orders until either party dies or the payee remarries is unimaginable in many other jurisdictions. In almost all cases in Scotland, maintenance will not continue for a period longer than three years; in Spain, although maintenance can be open-ended, it will rarely be payable beyond two years; and in Germany, the parent at home with children is expected to re-enter the job market when the youngest turns three — and should be working full-time by the time the youngest is twelve. The discretionary nature of English family law means all the options are available for the judge; what is lost in predictability is gained in flexibility.

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What is yet to be seen, and what may be a cause for concern, is how the Wright decision will be applied. Will the Court of Appeal’s remarks and support for this decision (which in our opinion is right on its facts) send ripples down to the lower court that will change the approach for cases with very different facts?

Has there been a change of emphasis when it comes to maintenance claims, so that rather than the default position being ongoing maintenance it has become more likely that it will be for a fixed term?

We will only be able to answer these questions in due course, but what the case of Wright has taught us is that attitude can play a part; it is no longer acceptable to assume that you will be supported for life. The Supreme Court certainly confirmed this in the case of Vince v Wyatt when Lord Justice Wilson said: ‘It is a dangerous fallacy… that the current law always requires rich men to meet the reasonable needs of their ex-wives.’ In reality, family law is far more complicated than that: every family has a myriad of particular facts and circumstances, and there can be no hard and fast rules.

Suzanne Kingston is a partner and Jemma Thomas is a professional support lawyer in Withers’ family law team

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