Italy, England and the great maintenance debate
As long as English courts will continue to make generous awards to the financially weaker spouse, London's reputation as the divorce capital will hold firm, says Paul Hunt
There were reports recently of a high-profile case which, it appears, will have a significant impact upon the level and duration of spousal maintenance payments in Italy.
An Italian Supreme Court ruling was made in relation to a case involving American businesswoman Lisa Lowenstein and her ex-husband, a minister in the Italian government, Vittorio Grilli.
The couple divorced in 2013, and despite Mr Grilli making a monthly maintenance payment of up to €2m to Ms Lowenstein, she continued to fight through the courts to make him pay heavy debts which she had accumulated.
When the Milan Court of Appeal rejected Ms Lowenstein’s claim to receive maintenance payments for life, she appealed to the Supreme Court.
The move led to the landmark ruling that divorcees who have independent means or are capable of working will not automatically receive maintenance payments, which, in the past, were assessed on the basis that ex-spouses have a right to retain the same ‘tenor of life’ as when married.
In addition, those who are self-sufficient should not expect maintenance payments indefinitely, the court said.
Significantly, the court took the view that high maintenance payments could create an obstacle for starting a second family for the payer, and would therefore be a breach of his or her human right to family life.
As in Italy, the standard of living during a marriage is an element that can be taken into account by the English courts when considering claims. Indeed, there is often an expectation that the court will do what it can to preserve the same standard of living that was enjoyed during the marriage post-divorce.
However, weighing up the often conflicting rights between family law and human rights issues can provide just as much of a challenge for the courts in England and Wales as it did in Italy.
In July 2016, lawyers of a man given a six-week suspended prison sentence for failing to pay his ex-wife £2,000 per month won his appeal after arguing that jailing husbands for failing to pay maintenance violated their human rights.
That said, huge payouts to ex-spouses still continue to be made. Earlier this year, barrister Philip Cayford QC called for a change in the law to limit former spouses to five years’ maximum maintenance, after his client was ordered to increase his ex-wife’s monthly maintenance payments 15 years after they split.
The ruling came about after a series of investments made by the ex-wife went wrong, despite her already having received a £230,000 lump sum, plus £1,100 monthly personal maintenance payments.
So will Italy’s latest ruling drive even more divorce cases towards London? While entitlement to a divorce in England is in itself a complex matter, in 2012, the Times found that one-sixth of divorce cases heard by English courts involved foreign nationals. In those cases dealing with huge sums, around half were thought to involve international couples.
Of course, there are changes afoot, not least of all the UK’s departure from the EU and the cross-jurisdictional issues that this is going to raise. However, while the courts continue to make generous awards to the financially weaker spouse, it appears that, in the short term at least, London’s reputation as divorce capital of the world will hold firm.
Paul Hunt is a senior associate at Kirwans Solicitors