By the ‘Fair Shares’ Project Team: Emma Hitchings, Caroline Bryson, Gillian Douglas, Susan Purdon and Donna Crowe-Urbaniak
Fair Shares – Sorting out money and property on divorce is a new study, funded by the Nuffield Foundation, which will explore the arrangements couples reach relating to their finances and property when they divorce. Using a large-scale survey and in-depth interviews, it will examine what arrangements they make, how they arrive at them and how well they think they have met their expectations. The aim is to provide hard data for law reformers seeking to update the law, and insights for judges, practitioners and divorcing couples themselves on ‘what works’ best.
A recent case in the Family Court raises an important question for our study. Why should one person be ordered to ‘maintain’ (give financial support to) another, even after their marriage has come to an end? The case also illustrates how different legal systems can take quite different approaches to this question, even within the United Kingdom.
In Villiers v Villiers ([2021] EWFC 23) the couple married in England but lived in Scotland during the marriage. When it broke down, the wife moved back to England and issued a divorce petition there. The husband then began his own divorce proceedings in Scotland. As that was where the couple had last lived together, under rules governing which court had the power (‘jurisdiction’) to decide on the divorce, the husband’s Scottish proceedings took precedence.
Scottish law is not regarded as being as ‘generous’ as the law in England and Wales when it comes to deciding what financial arrangements should apply on a divorce. In particular, ongoing financial support is usually time-limited to no more than 3 years, and matrimonial property is split 50/50 unless there are particular reasons not to do so. In England and Wales, periodical maintenance payments can be more open-ended (although the court does have the power to time-limit them) and assets can be split in any proportions or totally transferred from one spouse to the other, depending on what arrangement the court thinks will be fair.
Since Mrs Villiers would be governed by the Scottish law when it came to settling the couple’s finances, she made a separate claim in England, before the divorce had been pronounced in Scotland, this time for maintenance. She did this under the Matrimonial Causes Act 1973, which states that either party to a marriage may apply to the court for an order on the ground that the other spouse ‘has failed to provide reasonable maintenance for the applicant.’ The fact that the marriage may later be ended by a divorce does not, of itself, bring such a maintenance order to an end. Her claim was intended to enable her to find a partial way round the limits of the Scottish approach.
Unsurprisingly, the husband resisted her claim, and it went all the way to the Supreme Court which decided, last year, that it could go ahead. So back in the Family Court, Mr Justice Mostyn has now given judgment on the maintenance claim – and dismissed it completely. He did so based on the parties’ financial circumstances which he ruled meant that the husband had not ‘failed to provide reasonable maintenance’. As the published judgment doesn’t include the details of their finances, we can’t see why he reached this conclusion. But the judgment is interesting because he raises the question why one spouse should be required to maintain the other even after they have divorced? He argues that this is illogical and quotes from previous cases describing it as anomalous and contrary to common sense.
There were historical and technical reasons why the judge accepted that, however anomalous, the wife’s claim was a legitimate one (albeit one he ruled against on the merits). But the question of principle that he raises is very important. The answer to it lies in the view we take of the nature of the marital obligation of support. Most legal systems – including Scotland’s – accept that marriage may create circumstances which affect a spouse’s ability to be financially independent. A wife may give up work or cut back on her hours while she raises the couple’s children or lose a career opportunity if the couple move for the husband’s work. While the husband may have been the major breadwinner during the marriage, the wife’s ‘contribution’ to the marriage lies in her non-financial efforts as home-maker and carer. In such cases, the husband may be said to owe a continuing obligation to the wife for the benefits he enjoyed during the marriage which have left him in a better position to recover financially, than she can do, particularly if she continues to be the primary carer of the couple’s children. And of course (unlike the historical position under the ‘common law’ in England and Wales), that obligation is equally applicable where the wife is the breadwinner and the husband is the dependent spouse.
Proposals to reform English law have taken inspiration from the Scottish approach, with a private member’s bill (the Divorce (Financial Provision) Bill) regularly being introduced into the House of Lords, most recently by Baroness Shackleton (who famously represented Sir Paul McCartney in his divorce from Heather Mills). Her view is that the current law treats women as dependants when in fact they should be regarded as autonomous adults able to take care of themselves. Her bill is not identical to Scots law – for example, it would presumptively limit post-divorce maintenance to 5 years rather than three – but the clear intent is to modernise the law along Scottish lines.
Yet Lord Hope, a Scottish judge, criticised the Scots law when he gave judgment in the most important English case on this issue, Miller v Miller; McFarlane v McFarlane back in 2006), and called for it to be reformed so as to recognise, as English law is able to do, the sacrifice that many women make to give priority to their family over their career. In that case itself, Mrs McFarlane had given up the chance to develop her career in order to concentrate on raising the family and enable the husband to focus on his work. When they divorced, the courts recognised that dividing their available capital would not sufficiently compensate her for that lost opportunity and they ordered him to make very substantial ongoing periodical payments to her instead.
While maintenance orders for spouses (both during and after divorce) are in fact very seldom made these days, as both parties prefer the finality of a ‘clean break’, it would be a shame to lose the flexibility of the current law based on an inaccurate assumption as to the ability of wives (in particular) to secure their financial independence after marriage.
Villiers v Villiers has another lesson for those seeking to reform the law and it’s one that’s already well understood by practitioners and judges in the family justice system. The couple split up in 2013, but eight years later, they still haven’t concluded their divorce proceedings. Mr Justice Mostyn characterised this as ‘a case where love has to hatred turned to an extraordinary degree’ with the result that both parties were now financially ruined and psychologically damaged. Any reform of the law should limit the scope for this kind of psychological damage inflicted on the parties and, of course, potentially on their children.
Our Fair Shares study will, we hope, add to our understanding of what makes some divorces go smoothly and others, like this one, anything but. We begin collecting our data this autumn and will report on our initial findings in April 2022.