Clean break on divorce?

An article the solicitors Journal www.solicitorsjournal.com on 19 April 2016 is well worth a look

The judges are moving away from a needs only approach to deciding spousal maintenance.

The judge must to consider whether a ‘clean break’ can be achieved, and no spousal maintenance is paid (child maintenance is dealt with separately). If the judge decides to make a maintenance order, he must consider imposing a term sufficient to allow the financially weaker party to reach financial independence without ‘undue hardship’.

The cases of Miller and McFarlane created the three guiding principles of ‘needs’, ‘compensation’, and ‘sharing’ in determining  financial remedy) claims.

Other than in limited circumstances, the key concept for determining a maintenance order is that of ‘needs’. This remains an elastic concept. Applicants are consequently encouraged to produce generous assessments of their needs during financial disclosure to try to push the outcome to the upper end of the bracket.

A clean break order is either on the basis that no spousal maintenance is ever paid or because the maintenance obligation is capitalised and satisfied instead by a lump sum payment. At the opposite extreme is maintenance on a ‘joint lives’ basis, whereby maintenance is payable until death or until the receiving party remarries.

Between these two , judges can order maintenance of a nominal sum of, say, £1 per annum to leave the door open for a further application if necessary, or maintenance for a term, either for a set number of years.

Especially in the London courts a joint lives maintenance order has been the norm, the rationale being that if financial circumstances change (e.g. as a result of retirement, ill-health, or unemployment) the maintenance order can be varied. This has fuelled the English courts’ reputation for generosity, and making it the wife’s divorce capital of the world.

A changing approach?

The judges, however, may be having a rethink. In as Wright v Wright the judge said ‘once a child is in year two, most mothers can consider part-time work consistent with their obligation to their children’.

The superstar judge leading the way is Mr Justice Mostyn, and, we can expect to hear more of ‘transitioning to independence’, ‘acceptable degrees of hardship’, and ‘term orders’, and quote a meal ticket for life”

Experience shows that the most efficient and experienced fixed fee solicitors and lawyers are in London, despite extra overheads.

The Central Family Court, previously the Principal Registry in London is more suitable, especially for wives, for complex or middle and upper-class divorces. The judges are far use to what other County Court might consider to be ‘high’ awards of capital and maintenance.

London judges in particular are very experienced and sophisticated when it comes to investigating assets, especially overseas companies and trusts, and anecdotally especially for wives.

Hylton- Potts can help with problems like this. We operate from London offices but help clients all over the country at highly competitive fixed fees.

There is an office hours free confidential hotline 020 7381 8111 and a 24-hour free confidential email legal help service [email protected].