What is the truth behind a recent study by Penningtons Manches of awards made for spousal maintenance on divorce which looked at the legislation and case law across 16 Jurisdictions to see which were the most generous? Sarah Duckworth investigates.
It is well known that London is referred to as the ‘Divorce Capital’ of the world. As a family lawyer it is essential to tread extremely carefully with any client who has an international background. If acting for the financially weaker party it is necessary to consider and advise about the possible need to act with speed to secure jurisdiction if they will obtain a substantially better outcome in this country. At the same time, if a client is the one with the money and the income, it is necessary to explore whether they might be able to start a divorce in a jurisdiction which would be preferable for them to achieve a financial advantage, maybe to avoid having to pay maintenance to their spouse altogether.
By way of example, the English Court may order one spouse to pay to the other maintenance for ‘joint lives’ (which means potentially during their respective lifetimes) or for a period of time, whereas a Court in another jurisdiction, say in Russia or even just across the border in Scotland, may make no maintenance order at all on the same set of financial facts.
The reason is that the family courts in England and Wales have both the statutory power to make maintenance awards and also a wide discretion. The judge will very carefully weigh up all of the financial circumstances in order to achieve a ‘fair’ award in each and every case.
It is essential to take on board the fact that it does not follow that a maintenance award will be made in every case. The pendulum is certainly swinging and there is a firm expectation that a dependent spouse should work if they can and contribute to their own income needs or become self-sufficient as soon as they can, say, if there are young children at the time of the divorce to be working once the children are in full time school. The court also has a statutory obligation to consider if a dependent spouse can adapt without undue hardship and if that is possible must ensure that any maintenance entitlement is dismissed immediately on divorce or after a limited period of time to allow for adjustment.
However, the judges in our family court here are not fettered by a formula. It is often the case that after a long marriage where, say, a mother has given up work by mutual agreement to look after the home and family a maintenance order is required in order to meet her income needs, or a shortfall in her income needs if she has a low earning capacity, particularly if there is insufficient capital. It is not the case that the courts are overly generous or that they assume ‘dependency’ but they have the ability to ensure that fairness and needs are met after divorce where it is justly required to provide for support. Frankly, in other jurisdictions where the courts cannot or will not make suitable maintenance awards, divorce can sometimes leave the financially weaker spouse in severe hardship while the spouse, a high earner, preserves their income and wealth.
Sarah Duckworth is a partner at Mundays LLP