For Richer And Forever: The Marital Contract And Spousal Maintenance

Spousal maintenance is one of the most contentious issues between divorcing couples. How much; for how long; and what is it supposed to cover? It is, therefore, perhaps surprising that consideration of why the liability for spousal maintenance arises in the first place is rare. On the whole it is generally accepted, in principle, that on divorce the economically stronger will be obliged to support the economically weaker party.

Giving judgement following the final hearing of a wife's application for ancillary relief in SS v NS [2014] EWHC 4183, Mr Justice Mostyn focussed on the question "why?", in order to highlight both the social and, by extension, legal philosophy behind the principle itself.

He considered the question of social policy, noting how spousal maintenance has been dealt with since the advent of secular divorce in 1857. While the court is guided by legislative provisions, currently s.25 of the Matrimonial Causes Act 1973, the final decision in respect of appropriate maintenance provision is left to "the unfettered discretion of the individual judge" (para 40). This is in stark contrast to, for example, Scotland, Sweden and New Zealand where legislation provides that, save in highly exceptional circumstances, the obligation to maintain is limited to a short period. In Scotland it is 3 years. In Sweden it is referred to as a "transitional period" and the starting point in law is that divorce terminates all economic ties and that each spouse should be responsible for his or her own support. In England and Wales such restrictions have met strong criticism and judicial discretion continues to be favoured.

Why?

Summarising a number of judicial perspectives, Mr Justice Mostyn explained that the rationale for imposing the obligation of spousal maintenance is to meet hard needs which the matrimonial relationship has generated. Most often, those needs arise as a result of career breaks taken in order to focus on bringing up a family and the economic effect on the relevant party's independent financial stability and employment prospects. These are needs directly generated as a result of choices made within the marriage.

The assessment of needs "cannot be pressed into a formula which provides an answer, and it is right that that should be so, [for the assessment is] ... elastic, fact-specific and highly discretionary" (para 40).

The future

This is not to say that English courts are not mindful of the need to enable economic independence...