Is the ex-wife expected to work?

A husband and wife, both middle-aged, with two children of school age, separate and divorce. In making a financial provision and property adjustment order, should or must the court expect the ex-wife to work and to earn money?

Statutory factors

The statutory factors to be considered are clear from section 25 of the Matrimonial Causes Act 1973:

(a) The parties’ income, earning capacity, property, and other financial resources;

(b) The financial needs, obligations, and responsibilities;

(c) The standard of living previously enjoyed;

(d) The age of the parties and duration of the marriage (see Foster v Foster [2003] EWCA Civ 565);

(e) Any physical or mental disability;

(f) The contributions to the marriage (e.g. the wife helping the husband in his business);

(g) The conduct of the parties if it would be inequitable to disregard it (i.e. where it is obvious and gross). Nowadays this is a marginal factor (see the cases of Wachtel v Wachtel [1973] Fam 72 and Owens v Owens [2017] EWCA Civ 182, and the articles ‘Can a spouse’s “bad” behaviour affect a divorce settlement?’ (Claire Reid (2015) SJ 159 (47)), ‘One step back for no fault divorce?’ (Helen Greenfield (2017) SJ 161 (15)) and ‘The call for no fault divorce’ (Kara Swift (2017) SJ 161(5))); and

(h) Any lost benefits.

Where there are children, the court must have regard to:

(a) The financial needs;

(b) Income, earning capacity, and property (though this is unlikely);

(c) Any physical or mental disability; and

(d) The child’s education and training.

Maintenance

Access is agreed: the wife is to have the children living with her, the father to have access. The wife will continue to live in the matrimonial home in order to provide a home for the children. The mortgage, hitherto paid by the husband, will need to be maintained. So what about the maintenance?

For some years before the marriage, the wife did work, gaining some skill and experience. During the marriage she has not worked, but has stayed at home looking after the family, or undertaken some occasional or part-time modestly remunerated employment. The husband has earned a comfortable but by no means excessive salary as a professional or business man. They have lived as an ordinary middle-class family.

The wife claims maintenance, relying upon the principle of equality. The children need her at home; she did little or no work during the marriage; the husband can afford to support her; she is older, perhaps with a degree of ill health; and she lacks experience and skill in the employment market. All these factors make it difficult, if not impossible, to obtain work.

The husband claims that earning capacity is a statutory factor: the wife could find work at a time of full employment. He argues that in an age of gender equality women could and should work, as do many women in her situation. The parties should be preparing for a clean break and financial independence.

Inevitably, maintenance cases are very fact specific, depend upon all the circumstances, and lie very much in the discretion of the judge in applying a value judgment – an art, not a science.

The needs of the children are not as a matter of law strictly paramount, though they are over-arching and the first consideration must be given to their welfare if they are under 18 (see Suter v Suter and Jones [1987] Fam 111). Inevitably and properly they must rank very high.

The judge must (‘shall’) have regard to the statutory matters in section 25 and should meticulously run through the list, briefly giving reasons for accepting or rejecting them as relevant in context. There is no hierarchy of factors.

Equality principle

Today we live in an age of female emancipation, and all men and woman are expected to earn their living so far as they can, unless a good reason can be shown (see K v L [2012] 1 WLR 306, paragraphs 15 to 22). Equality as a matter of public policy has been the theme in the Supreme Court, as shown by White v White [2001] 1 AC 596 and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 (see paragraphs 31 and 32).

The parties now live separate lives. However, the parties in these and similar reported cases have tended to be wealthy, with money beyond their needs. With ordinary families, the equality principle has to be modified into a working, practical principle of justice, fairness, and balance, sharing the burdens of the breakdown.

The wife may qualify for an element of compensation, having on marriage given up a promising career and lost the opportunity of building up some savings, unlike the husband who has built up considerable savings.

The standard of living during the marriage can give a good indication of the reasonable expectations of the parties: how they met the mortgage payment; the household expenses; the needs of the children; obligations from previous marriages and relationships; how the family money was managed and spent. As time passes after the divorce, the marriage lifestyle becomes steadily less significant and the extent of available resources more significant (see Juffali v Juffali [2016] EWHC 1684 (Fam)). Current needs are more important than previous lifestyle (see Rapp v Sarre [2016] EWCA Civ 93). The fact that the husband during the marriage dissipated money on alcohol, drugs, and prostitution will not give the wife a larger share of the remaining money: you take your spouse as you find him (see MAP v MFP [2015] EWHC 627 (Fam)).

So, in the light of the family history and now the new situation, how is the wife and mother to be financially maintained, especially having regards to means and obligations?

Tapering order

So long as the children are dependent, even if they are over 18, maintenance will remain an ongoing matter. The order will recognise that circumstances may evolve over time, and may take this into account, reflecting anticipated changes (see Murphy v Murphy [2014] EWHC 2263), but the order is always subject to review by the judge (see A v A [2016] EWCA Civ 72). It may take a little time for the wife to realise her earning capacity, so a tapering order may be appropriate (see MF v SF [2015] EWHC 1273 (Fam)). For less well-off families, welfare benefits may be a factor of some significance. A clean break is unlikely to be possible until the last child ceases to be dependent.

In Wright v Wright [2015] EWHC Civ 201, a recent typical example of this type of case, the parties were divorced, middle-aged, with two schoolchildren. The husband was earning a comparatively good income. Before the marriage the wife had worked as a legal secretary and a riding instructor but had not worked since. The Court of Appeal held that there is a general expectation that the ex-wife and mother with children over the age of seven should seek appropriate work compatible with the children’s education requirements, without undue hardship, so as with modest earnings, tax credit, and child benefit, and pension prospects, as retirement was looming, the maintenance payable by the husband could be assessed accordingly, on a tapering scale. The maternal independence would even be a role model for the children. SS v NS [2014] EWHC 4183 (Fam) is another useful example.

The joint lives maintenance order no longer guarantees support for life. The clean break is the aim. The principal factors are likely to be: the duration of the marriage; the needs of the children; the needs of the parties; and the alleviation of hardship. The judge should consider a term or extendable term rather than joint lives. The needs of the economically weaker party, usually the wife, should predominate.

Recognising the desirability of self-sufficiency, the law requires the judge to consider whether it would be appropriate to order the periodical payments only for such a term as would be sufficient to enable the wife to adjust without undue hardship to the termination of her financial dependence upon the husband (section 25A(2)).

Pensions

As the ex-wife is likely to have less income than the ex-husband, and a lower private and state pension than him, pension sharing will be significant for her as they grow old. A maintenance review may become necessary (sections 24B-G and 25 B-G).

Legal costs

The parties must bear their own legal costs, unless one has no money, cannot borrow the money, and would otherwise not be legally represented, and therefore it would be reasonable for them to seek costs from the other spouse (sections 22(2) and 22ZA).

Alec Samuels is a barrister and former reader at Southampton University