High Maintenance: Couples Play Catch-Up with Divorce Courts 

Published on 04 April, 2018 | James Brown

Divorce does not necessarily have to mean discord.

It’s a view which seems to contradict the perception – fuelled, in part, by media coverage of certain combustible splits – that the end of a marriage is always accompanied by conflict.

Nevertheless, the vast majority of divorces handled by myself and my colleagues at Hall Brown Family Law are resolved amicably.

Often long relationships may have drawn to a close but the process by which they do so is still handled by the sense of understanding or compassion which dominated so much of a couple’s time together.

It is a positive tone which family lawyers like myself do our level best to nurture, even encouraging spouses who enquire about the possibility of divorce to undergo counselling to help them determine if their marriages have irretrievably broken down or not.

I was reminded of this constructive nature of marital breakdown while looking over the latest statistics produced by the Ministry of Justice in relation to cases handled by family courts across England and Wales https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695363/family-court-stats-oct-dec-2017.pdf.

They demonstrate that the number of divorce petitions was four per cent lower in 2017 than the tally for the year before.

That might suggest marriage in this country is – to borrow a phrase which has become commonplace in Britain over the last 12 months – “strong and stable”.

In my opinion, though, that is far from the whole story.

Look a little deeper at the data and we can see some interesting shifts.

There is a rise, for instance, in cases where the provision of spousal maintenance (or ‘periodical payments’, to use the correct legal terminology) has been agreed without dispute.

Elsewhere, we find a reduction in maintenance awards which had been initially contested.

On the face of it, those two figures might not appear significant but they hint at the sort of tension between prevailing legal opinion and the attitudes of spouses who don’t go to court to divide their assets which is missing in the many amicable divorces which we deal with.

A drop in initially contested maintenance cases suggests that demands for ongoing financial support may have been abandoned after guidance from the courts that such claims were, in fact, unlikely to succeed.

Such a conclusion would certainly be in keeping with our recent experience. As my colleague Andrew Newbury observed on these pages in May last year https://hallbrown.co.uk/girl-power-death-meal-ticket-life/, courts are less inclined to agree to requests for maintenance than in previous years.

In some cases, that is because they don’t believe these awards match up to the twin key principles of the financial aspects of divorce; namely, whether settlements are fair and reflect the needs of both parties.

That was perhaps made clearest of all in the 2015 Appeal Court case of Tracey Wright, whose request for continued maintenance from her racehorse surgeon former husband was rejected by a judge, who suggested that she find a job with which to support herself and her children https://www.telegraph.co.uk/news/uknews/law-and-order/11429864/Divorced-wife-told-to-get-a-job-and-stop-living-off-her-ex.html.

The new official data indicates how the arrangements agreed by the public lags behind the current thinking of the courts.

Just as we have seen in other trends in marriage and divorce – such as the adoption of pre-nuptial agreements or recognition that housewives and mothers play as important a role in building a happy marriage as a breadwinning husband – public practice does take time to catch up with emerging developments.

With that in mind, I would not be surprised in time to find more spouses come to regard maintenance as not being an automatic provision and look at alternative means of unpicking their finances on divorce.

Should that change take place, it would not necessarily justify the notion that divorce does result in disagreement. Instead, it would merely highlight the importance of case law in establishing the yardstick for what is right and proper in how couples deal with such a delicate stage in their lives.


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