This post was written by our new contributor Polly Morgan.

An article in The Times on 23 May 2017 headlined ‘Former wives give up chasing “meal ticket for life” in divorce’ (behind paywall) refers to falling numbers of spousal maintenance orders. The newspaper reports that the number of spousal maintenance orders has declined from 12,080 in 2011 to 10,590 in 2016. Some people will find this cheerful news. Others might be concerned that this practice might be bad for the poorer party in a marriage, which is usually – but not always – the wife.

What is a spousal maintenance order?

When parties divorce, they need to decide how to share their assets or debts, and if they cannot agree then a judge will decide for them. The outcome of either route might involve (for example) selling the family home and dividing the proceeds, or one party keeping the house and paying the other a lump sum as their share, or it might involve sharing pension funds.

In most cases, once all of this has been done, then the couple cannot go back and ask for more in the future. This is called a clean break, and ensures they can get on with their lives independently. Most couples have a clean break.

However, in a minority of cases, one party won’t have enough money to live on after the divorce. In these cases one party may agree or be required to make payments to the poorer party, usually each month, to help the poorer party to meet his or her living expenses. These are periodical payments – more commonly known as spousal maintenance. Don’t get these confused with child maintenance which is different. This is support for the adult.

Spousal maintenance can be paid:

  • For as long as both parties are alive (the so-called ‘meal ticket for life’), which might be more appropriate where the recipient is an older person who has little ability to get a job either at all, or that pays enough to support them.
  • For a fixed term such as 5 years, to enable the poorer party to become financially independent, perhaps by retraining or by children needing less hands-on care.

The amount and duration of spousal maintenance depends entirely on the couple’s individual circumstances. The Family Justice Council guidance distributed to judges recommends considering a wide range of factors about the recipient’s earning capacity, childcare obligations, age, and health, as well as the payer’s ability to pay. These are designed to help the court decide what is fair to both parties. It’s worth noting that the vast majority of maintenance orders are not contested, so the parties have agreed that maintenance should be paid, and how much and for how long.

Why does spousal maintenance exist?

Historically, maintenance was the only thing women could get on divorce, as they were not entitled to a lump sum or house or pension share. Men, on the other hand, could not get maintenance from the wife unless he was insane. Now, the law applies equally to both sexes. However, it is still almost always paid by husband to wife rather than wife to husband because it is wives who are on average less likely to be able to meet their needs post-divorce. Reasons for this could be:

  • That women work fewer hours, perhaps around school times, because of the cost of childcare. According to the Office of National Statistics, 86% of single parent primary carers are women. The presence of children limits their working hours.
  • That women earn less than men for the same work, or do not get promoted as quickly (the gender pay gap). This is particularly the case for older women.
  • Women work a few hours less per week when full-time, compared to men (source: ONS). (This could be because women still do most of the domestic tasks even when both parties work full time.)
  • That the wife has been out of the job market for a long-time or has few or no qualifications. This may particularly be the case for women over 50 and the divorce rate is rising among older couples.
  • Women have fewer savings following divorce and are more reliant on benefits.

If reading the above makes you annoyed, you’ve hit on the fact that spousal maintenance is controversial. The main criticisms are:

  • It is paid even though the parties are divorced. They may not like each other – after all, that’s probably why they’re getting divorced. It keeps their financial futures tied together. They thought divorce would end that.
  • It might be a joint lives order, where the maintenance only comes to an end if one of them dies.
  • Either party can apply to court to increase it or decrease/end the maintenance. This means that maintenance can be a long-term, unquantifiable liability. This affects both parties’ ability to plan for the future,
  • While it will end if the recipient of the maintenance remarries, it won’t necessarily end if they just cohabit with someone else.
  • The recipient may have limited incentive to become independent.

We can see several of these factors in the case of Mills v Mills, which The Times discusses. Maria and Graham Mills were married for 13 years. At times, Mrs Mills supported the family financially and at other times, particularly when Mrs Mills was ill at the end of the marriage, Mr Mills did. They divorced in 2002. They sold their house and Mrs Mills got most of the proceeds to buy a house for her and their son, and Mr Mills got a lump sum and a business.

Since then, Mr Mills has paid spousal maintenance of £1,100 per month to Mrs Mills. In 2014 Mr Mills applied to reduce the maintenance or end it, and in response Mrs Mills applied to increase it. By this time she was living in rented accommodation having lost all of the capital she had been awarded in the original 2002 order. Mr Mills argued that Mrs Mills had mismanaged the money and should not get any more. The court accepted that she had not mismanaged the money, but that her financial situation was, in the words of her barrister, ‘run up over many years as a single parent having health difficulties’. The court ordered increased maintenance to £1,441 per month which is what would meet her basic needs – the amount she required to live on.

The case has been reported as one in which Mrs Mills has undeservedly had the benefit of a large amount of money for a very long period of time and that she hasn’t actually gone out and earned. Mr Mills’ capacity to manage his life and save for his retirement is harmed by the maintenance that he pays.  He has remarried and has a new family to support, albeit on drawings taken from his business of about £200,000 per year. On the other hand, Mrs Mills is not able to earn much herself because of ill health and her time as primary carer of their child, and the court assessed that amount as meeting only her basic needs and after taking into account what she could and should earn and what ‘represents a fair proportion of the respondent’s available income’ (NS v SS (Spousal Maintenance) [2014] EWHC 4183).  So this is a top up that meets the difference between what she can earn or receive in benefits and what she needs to live on.

Are there fewer spousal maintenance orders?

The Times’ figures come from the Ministry of Justice here (look under Family Court Tables). The data gives the number of different types of financial remedy order made. However, the figure for periodical payments seems to include both maintenance for spouses and maintenance for the benefit of children. Child maintenance is usually dealt with entirely separately, through the Child Maintenance Service. However, where the parties agree, a figure for child maintenance can be put into their financial remedy order. My understanding based on (admittedly rather vague) correspondence I had with the Ministry of Justice some months ago is that the figure doesn’t distinguish between spousal and child maintenance, as they are both under s23 Matrimonial Causes Act. So the decline in the number of maintenance orders could be a decline in child maintenance orders too, perhaps because people are using the CMS in preference, or reaching an informal arrangement for it. (I’ve asked the MoJ to clarify this.)

It is, though, certainly the case that spousal maintenance orders have dropped both absolutely (because there are fewer divorces) and as a proportion of orders. The Times interviews Andrew Newbury, a solicitor who has written some articles about maintenance. He suggests three reasons for the drop: women are expected to be self-reliant; women don’t want to be seen as dependent; and practical difficulties in enforcing the order means they don’t push for maintenance in the first place. These all suggest that people are not getting spousal maintenance when perhaps they should be. Don’t forget, though, that spousal maintenance is ordered in only a minority of cases. Most people have a clean break.