My “15 Minutes of fame”, Eddie Redmayne and The Theory of Everything...

…at least insofar as it relates to spousal maintenance in English financial remedies upon divorce

It’s not every day that one wakes up to a string of messages telling you you’re on the front page of The Times, next to Eddie Redmayne.  But that’s what happened to me – in a manner of speaking - on 24 February 2015.  I know the date because I bought most of the copies in circulation and still have one – my 15 minutes.

Spousal maintenance then

Whilst Eddie was photographed collecting an Oscar for his role in The Theory of Everything, I had the more humble honour of being quoted by Frances Gibb, the legal editor of the Times, in an article that ran alongside. It was rather aggressively headlined: “Earn your own living, judge tells ex-wives”.  I was commenting on the Court of Appeal decision in Wright v Wright [2015] EWCA Civ 201, where the former wife was told she had to work towards financial independence, rather than continuing to rely on maintenance payments from her former husband.  Indeed, she was given little alternative but to do so because the court substituted a ”joint lives” maintenance order which had been payable for so long as both parties remained alive (and the wife did not remarry), with one that would decrease over a 6-year period and then terminate. The court was of the view that, once a child is in Year 2 (age 7), “there is a general expectation that…most mothers can consider part-time work.” 

This, I commented at the time, was a step closer to the position in many other jurisdictions where “…it is the exception rather than the norm that women should be supported after divorce and there is a presumption that women will work towards early self-sufficiency.”  In many ways, what was most surprising about the decision in Wright was that it raised so many eyebrows.  After all, it came twenty-five years after Lord Scarman said in Minton v Minton [1979] AC 593 that “An object of the modern law is to encourage [the parties] to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down.” The House of Lords decision in Minton played its part in the statutory amendment introduced by the Family and Matrimonial Proceedings Act 1984 of a requirement for the court to consider in every case how soon it would be just and reasonable to terminate ongoing financial obligations between the parties – the “clean break” provision.  It was colloquially said that the “meal ticket for life” was no more. The House of Lords emphasised the same point in the conjoined appeals of Miller v Miller; McFarlane v McFarlane [2006] UKHL 2, Baroness Hale making clear: “It is the role of spousal support to enable the economically weaker party to adjust to the loss of support over time.  The goal should be financial independence as soon as it is just and reasonable.” 

So too, the same point was underlined in SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam) which came a year before Wright. In SS v NS, Mostyn J gave one of his characteristic summaries of the applicable legal principles, and in these and in his wider judgment he too focussed on the need to transition to financial independence after divorce.  And yet the decision in Wright still made front page news. 

Spousal maintenance now

In a legal landscape with a (broadly) unchanged statute dating from 1973, many feel this judicial evolution has been required to keep step with societal changes over the same period. But how has the position changed 10 years on from Wright and SS v NS?

Stated briefly, the answer is “quite significantly”.  A “joint lives maintenance order” is now the exception rather than the rule. “Term orders”, under which maintenance is payable only for a specified number of years, are now the norm.

Falling in line with these developments, the Duxbury Working Party published its final review at the end of 2024 and concluded that capitalised maintenance calculations, under which a lump sum is paid in lieu of periodical payments, should no longer default to the life expectancy of the recipient, which assumed a “whole life” award, and the court should instead apply an appropriate term to the quantum of maintenance being capitalised. 

If one can appropriately use the term “zeitgeist” to describe a “radical” transition over the 10….20….30, nay, 40-odd years outlined above, the Law Commission scoping report on reform of financial remedies on divorce was also published in late 2024 and harnessed the zeitgeist. One of the specific terms of reference was whether there was scope for reform by introducing a maximum period for spousal periodical payments orders (as is the norm in, for example, Scotland, where a 3-year term of ‘aliment’ is the ordinary maximum). Our firm, Charles Russell Speechlys, pre-empted the publication of this report by holding a debate in November 2024 on the points being considered by the Law Commission scoping report. As to whether there should be a maximum period for the term of spousal periodical payments, the audience was divided pre-debate 27% in favour and 73% against a maximum term; post-debate those against a maximum period were swelled further in their number - 17% in favour and 83% against (The Charles Russell Speechlys Family Team Debate – Reform of the Law on Financial Claims on Separation and Divorce).

Reform?

But what of the scoping report itself? The report merely canvasses and reports opinion; it makes no recommendations in itself.  It identified criticism of the current law as a result of the judicial discretionary approach which it said leads to unpredictability and lack of clear rationale as to when maintenance should be paid, if at all. The broad consensus appears to be that it would be unduly inflexible, inappropriate and unfair to introduce a maximum fixed term for spousal maintenance. Most respondents favoured a ‘safety net’ requirement to ensure provision could still be made for those spouses who require support, but there was firm focus on both parties to the marriage transitioning to independence as early as possible. Perhaps understandably, the judiciary broadly favour the retention of flexibility, whereas the public seek greater certainty of outcome.

In this context it is also important to mention the repeated efforts of Baroness Deech in four successive parliamentary sessions to introduce her Private Member’s Bill limiting spousal maintenance to (originally 3 years but now) 5 years, save in limited circumstances. It has not gained much traction and there appears to be a clear consensus that, whilst greater predictability of outcome is required, a ‘one-size-fits-all’ maximum term is unduly restrictive and swings too far the other way creating unfairness for the opposite reason of inflexibility. The professional body of family law professionals, Resolution, favours a limited term of spousal maintenance but with guidance being offered to inform an appropriate term but with no explicit maximum. The goal once more is to facilitate a transition to independence whilst maintaining an appropriate balance between encouraging limited terms whilst not imposing unfairness. 

I venture to suggest the right legislative result is almost always an appropriately balanced middle ground, but the scoping report recognises this is not so different to the current position under the discretion provided by the current statute – perhaps a time to invoke the principle of ‘if it ain’t broke, don’t fix it’?

Important, but outside the scope of this article, is consideration of the principle of “compensation” as a strand of maintenance entitlement where one party has suffered a relationship generated disadvantage.  In practice, the Supreme Court’s introduction of “compensation” in the conjoined appeals of Miller and McFarlane [2006] UKHL 24 as one of three fundamental ‘strands’ of fairness in any financial remedy case has only really been flirted with occasionally in subsequent caselaw. It has rarely been an ingredient in cases since McFarlane. Rhetorically, is that ‘fair’? It probably is, not least because the facts of McFarlane were exceptional, in that the husband had an extremely high income and the wife had by agreement given up a potentially lucrative career to look after the children. As is often said, hard cases make bad law. Similarly, outside the scope of this article, but fundamental to the principles that underpin maintenance, the case of Waggott v Waggott [2018] EWCA Civ 727 (Fam) held that there is no entitlement to ‘share’ in future income. Is that ‘fair’?

Social context and cultural aspirations - the provocative questions

My gratuitous opening reference to Hollywood glamour aside, this article might be said to be a rather dry canter through the jurisprudence of one important aspect of family law over the past 50 years or so.  However, particularly in the context of such a malleable, discretionary statutory structure as the Matrimonial Causes Act, what I have always liked about the work that we do is the extent to which its interpretation and application sit not in a vacuum but rather in a dynamic and fascinating social climate. That may sound trite; doesn’t all law, economics and politics necessarily sit in its social context?  But the broad discretion permitted by our statute makes for fertile ground and perhaps bespoke inventive solutions, and is an unusually alive legal instrument, capable of holding a close mirror to society. Both its application – and any discussion of family law reform – require close focus on how we want to reflect and drive society. Family lawyers are used to seeking a “fair” outcome but it is plainly impossible and delusional to suggest there is any universal, objective notion of “fairness”.

Baroness Deech’s aspirations are admirable: she believes a reduction in reliance on maintenance will force a greater transition to equality between the sexes and, to the extent that inequality remains, that economic disadvantage should be addressed by society rather than in reliance upon a former spouse.  Dare I venture to say that that feels naïve in an increasingly competitive, capitalist driven world that has taken huge strides towards gender equality in the home and at work but which remains unable to reconcile that with recognition that the myth that you can “have it all” is just that: a myth? 

Today’s world also recognises various inconvenient truths. There is the gender pay gap - and the difficulty with eradicating it until we can play God with biology. There is also an ongoing mental health crisis and greater recognition of the importance of attachment theory (which focusses on the importance of early bonds between children and their primary caregivers to develop a lifelong sense of security), both of which can require significant parental engagement. Should a family be discouraged from arranging itself in such a way that one parent stays at home where the other earns more than enough to support them all? What of the family where international relocation in support of one spouse’s career requires the sacrifice of the other’s?

What next?

These are the questions about the principle of spousal maintenance and how long it should generally last that intrigue me. In my view, how we answer them plays a significant part in unlocking the answer to how the law in this area should evolve and, potentially, be reformed.  A fair answer to these questions operates and underpins so much of the fabric of our society but they are complex and all too frustratingly also sit beyond the further scope of this article. I shall also end with an equally unsatisfactory “watch this space” refrain. The wheels of statutory family law reform turn notoriously slowly, but they do appear to have less friction than perhaps they have at all other times during my career to date. 

Wikipedia unreliably informs me that Eddie Redmayne is currently filming “Panic Carefully” which one might consider an apt observation on the need for, and momentum of, reform to spousal maintenance.