Baroness Deech is currently supporting a House of Lords Private Members Bill addressing financial provision on divorce. The Divorce (Financial Provision) Bill proposes that spousal maintenance should be restricted to a total of three years, save in exceptional circumstances.
This reflects the position in Scotland, amongst other countries, where the courts take a restrictive approach to the award of spousal maintenance. Legislation provides that financial provision should be made for a period of not more than three years from the date of divorce.
The provisions of the Bill purport to address Baroness Deech’s perception that maintenance laws have not been thoroughly overhauled since 1857. While her proposed approach would likely lead to far greater certainty as regards the outcome of divorce and associated financial proceedings, it is a very significant, and somewhat arbitrary, volte face in the context of existing social policy in England and Wales. The courts here retain a high level of discretion in their assessment of what constitutes a fair spousal maintenance award, with a focus, in particular, on the future needs generated by the marriage, with the aim of eventual financial independence for both parties.
The three-year limit has attracted recent judicial criticism. Mostyn J, in his decision in SS v NS (Spousal Maintenance) , criticises such an approach, relying in particular on Lord Hope’s obiter remarks in Miller v Miller; Macfarlane v Macfarlane . Lord Hope considered that with the benefit of hindsight, “it can be seen how unfairly the principle… discriminates against women”. He went to say that, although men and women are seemingly competing on equal terms in business and in the professions, “the career break which results from concentrating on motherhood and the family in the middle years of their lives comes at a price which in most cases is irrecoverable”.
As far as Mostyn J is concerned, Parliament has already intervened (if only to a limited extent) by virtue of Sections 25A(1) and (2) of the Matrimonial Causes Act 1973. These provide that financial obligations upon divorce should be terminated as soon as is just and reasonable. The court is under a duty to consider a term which is long enough only to allow the payee to adjust to financial independence without undue hardship.
Above all, Mostyn J considers that “the assessment of needs is elastic, fact-specific and highly discretionary” and he is thus dismissive of the prospect of a formulaic approach to the calculation of the quantum, or term, of spousal maintenance.
Baroness Deech’s Bill is extremely unlikely to receive Royal Assent. It remains in its early legislative stages. Private Members Bills that progress significantly are few and far between. Having negotiated this hurdle, any bill which is remotely unpopular or controversial will be quashed by the government. The Divorce (Financial Provision) Bill has engendered a great deal of debate amongst lawyers and non-lawyers alike. It seeks to make drastic changes to the existing law, which have polarised opinion. There is consequently very little prospect of Government support for Baroness Deech’s Bill.