Following Lord Justice Pitchford's suggestion ex-wives go and find work Richard Phillips explains why it's far from a simple solution
Frequently in the past, wealthy (but not super-wealthy) husbands going through divorce were ordered to pay maintenance to their non-working ex-wives for life or until she remarried. It was based on the premise that he could afford to do so and the ex-wife should have a similar standard of living to the one she enjoyed in the marriage. In any case, he could always try to reduce or end the payments if there was a significant change for the worse in his circumstances.
With mega-wealthy husbands, the situation is rather different since the division of large assets would easily meet the wife's generous needs and maintain her luxury lifestyle without requiring continuing maintenance.
There has been a backlash in the past couple of years against awarding wives maintenance for life. In particular, the press have widely reported the headlines from a divorce case involving Mr and Mrs Wright this week.
In short, they were married for eleven years. They have two children, one aged ten who lives with Mrs Wright. The former matrimonial home was sold in 2008 from which Mrs Wright received ’450,000 to buy a house in Newmarket plus stabling for the family's horses.
Mr Wright, a leading racehorse surgeon earning a substantial income, was ordered to pay his wife and the children ’75,000 per annum and the children's school fees. Last year, Mr Wright tried to reduce his maintenance payment.
The case has received a lot of publicity because of the comments made by the initial judge and by the appeal judge that Mrs Wright should get a job and support herself. Lord Justice Pitchford added that it was possible for Mrs Wright to find work that fitted in with her childcare responsibilities. She was criticised for not looking for work since the divorce and for not making a financial contribution.
Looking at the judgment in the case in more detail, it is clear that the judges didn't like Mrs Wright. They found her evasive and that she exaggerated her income needs. The credibility and character of a witness still plays an important role in family cases.
Furthermore, what the headlines don't say is that the judge didn't stop the maintenance payments but ordered a gradual reduction of maintenance for her (as opposed to their daughter) over five years leading up to Mr Wright's retirement at age 65. The order on these facts doesn't look too harsh.
However, I do not consider that every husband who is paying maintenance for his ex should get carried away and open the champagne quite yet to celebrate the foreseeable ending of their maintenance obligations. Every case must be looked at on its merits.
What the court must consider is whether a fixed-term maintenance order can be imposed (rather than a lifetime order) which would enable the wife to adjust without undue financial hardship to the ending of the payments.
How certain can a court be that a wife, usually with children, can in a fixed timeframe earn enough money to be financially independent of her ex-husband and retain at least some vestige of the standard of living that she previously had?
The economic impact on wives with children is likely to last not only until the children leave school but for the rest of their lives. It is all too easy to assume that once children are at school that the parents who had previously stopped working, reduced their hours or gave up their careers to look after their children can go back to work and to be earning at the same levels that they were earning before they had children. The court must carry out a full enquiry of the evidence and not rely on supposition.
If there are reasonable capital resources to fall back on and/or the wife owns her own business or it is clear on the evidence that it would be straightforward for her to resume a career then, a fixed-term order might well be fair and enable her to adjust to a new situation without undue hardship.
However, if there is insufficient evidence to show the wife can become independent then it would in my opinion be wrong to not pay maintenance. The court can reduce or end the payments later if it would be fair to do so, and only once everyone has up-to-date information about the respective financial positions of the couple – rather than gazing through a crystal ball.