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Maintenance: deserved or degrading?

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In a series of law lectures last week, Baroness Deech, a family law expert and Chairwoman of the Bar Standards Board, declared that the current mechanism for deciding how assets and income are divided on divorce is inadequate.

Baroness Deech claims that the current legislation is unfair to men and degrades women by undermining their claims to equal pay and treatment.  She has called for reform to the process, proposing that a wife should have no claim to her husband's assets in a marriage lasting less than three years.  If longer, any claims should be limited to those assets acquired during the parties' relationship.  It is also proposed that maintenance should only be paid to a wife where she is unable to work or has young children.

There have been a number of recent high profile cases involving generous payouts to the wife which may demonstrate why Baroness Deech advocates such an approach.  In the case of Charman, the Husband lost his appeal and had to pay his former wife £48million after 27 years of marriage.  The sum was notable in this case as it went beyond the wife's reasonable requirements.  In the case of Miller, the wife received £5million after a childless marriage lasting only three years.

So is it time the law was reformed?  It has been a while - maintenance law has not been overhauled since 1857.  Society has moved on and nearly half the workforce is now female.  In Baroness Deech's opinion, it would be inappropriate to ‘...cry for equal pay and expect to be a kept woman'.

It is clear a balance needs to be struck.  The reality is that, in most divorce cases, there is insufficient income or capital to go around.  The decision as to what constitutes an appropriate division is dominated in these circumstances by need.

In cases where there is a surplus of assets, it has long been recognised that the homemaker's contribution equals that of the breadwinner.  The sacrifice made by the wife in such circumstances enables the husband to maximise his earnings.  Why then, should the wife not be entitled to share the fruits of their labour?  Baroness Deech says that women have a choice to work and child care does not take up the majority of a long marriage. But what happens when the parties mutually decide that it should? Is it still unreasonable in these circumstances for the wife to expect to be maintained?

This is where the Court's discretion is vital and why any proposed reform which looks to categorise marriage, as Baroness Deech proposes, cannot succeed.  When adjudicating upon a financial claim, the Court must have regard to all the circumstances of the case in accordance with the section 25 criteria.  The current proposals have the potential to limit what the Court can take into account.  This could produce an unfair outcome. 

The current system is not perfect and divorcing couples still face a great deal of uncertainty when the Court is asked to resolve a financial dispute.  The need for reform still exists but the categorisation of marriage will, in my view, serve only to add to, not resolve, the difficulties faced by the Courts in this area.

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