This month we will be considering the highly publicised case of Wright v Wright [2015] EWCA Civ 2015. Controversial comments made by Lord Justice Pitchford in the case suggested that the court’s approach would now favour, more than ever, the granting of temporary maintenance orders rather than orders that give an income for life. Before we look at the Wright case in detail we will first review the principles of maintenance and clean break orders.
A clean break means ending the financial ties between the parties as soon as reasonable after a divorce or dissolution. When a couple divorces or dissolves a civil partnership, one party may agree to pay the other a lump sum or ongoing spousal maintenance payments. Both are designed to help the financially weaker person adjust to his or her financial position after divorce. It also ensures the final financial arrangements are fair. Couples and the courts generally prefer a “clean break”, but that isn’t always possible.
Paying a lump sum to get a clean break – In some cases, there is enough money to “buy out” the financially weaker person’s maintenance claim. This is done by calculating a sum of money that the person can then invest and receive an income from instead of receiving maintenance payments. A lump sum payment doesn’t have to be paid in one go, although it often is. It can be paid in more than one instalment; for instance, a part payment when the court order is made, followed by other payments when the house is sold.
Paying spousal maintenance – A regular maintenance payment order is only made where one partner can’t support him- or herself financially without it. The amount received would normally depend on factors such as how much is needed to live on; how much income a party already has; and how much future earning potential a party may have.
If the marriage or civil partnership is short (typically, less than five years), maintenance may not be paid at all or only for a short period. When a couple has been together for a long time, or when an ex-partner is unable to work, it can be paid for life (but note the discussions below about possible changes to this approach following the Wright case).
A maintenance payment can be set for a limited period of time or until one party dies, marries or enters into a new civil partnership. The payment can also be changed if one party loses his or her job or gets better-paying work.
One final circumstance affecting financial orders the court makes is whether there are children of the relationship. If there are, then the issue of child maintenance orders will also be an important factor that the courts will consider. Child maintenance orders can be decided by the court but they are often now arranged by the Child Maintenance Service (CMS). (The CMS is replacing the Child Support Agency (CSA), but this is a gradual process expected to be completed by 2018.) When parents can agree child maintenance between themselves, this is known as a family-based arrangement. If parents can arrange everything themselves, then neither the CMS nor the court have to be involved.
Wright v Wright
The key point this case has emphasised regarding spousal maintenance is that the court should try to achieve a clean break wherever possible. The facts of the case were as follows:
Tracey Wright, now 51, separated from husband Ian Wright, now 59, in 2006. The couple later divorced in 2008, after 11 years of marriage. As part of the divorce settlement, the 16-acre Suffolk family home was sold. Mr and Mrs Wright shared an equal split of the £1.3 million proceeds.
Mrs Wright relocated to a £450,000 home in Newmarket, complete with suitable stabling to house her horse and the pair’s daughters’ ponies. Mr Wright was ordered to pay an annual sum of £75k to Mrs Wright towards her personal maintenance and towards their daughters’ school fees.
In 2014, the High Court heard Mr Wright’s application for a reduction in the personal maintenance portion of this agreement – £33,200 of the annual £75k payment was earmarked for the personal upkeep of Mrs Wright. Mr Wright raised concerns over his ability to afford this amount in retirement.
Judge Lynn Roberts ruled that the personal maintenance payments should gradually reduce and eventually cease over a period of five years: “I do not think the children will suffer if Mrs Wright has to work, and indeed a working mother at this stage of their lives may well provide them with a good role model. It is possible to find work that fits in with childcare responsibilities. I reject her other reasons relating to responsibilities for animals, or trees, or housekeeping.”
Mrs Wright took the case to the Court of Appeal, where the court rejected the provision of lifelong maintenance payments. Lord Justice Pitchford told Mrs Wright that divorced mothers with children over the age of seven should no longer rely on spousal maintenance payments. The judge ruled that “the order was never intended to provide the wife with an income for life”, adding that, “The time had come to recognise that, at the time of his retirement, the husband should not be paying spousal maintenance”.
This statement has been interpreted by some as the judge saying to Mrs Wright “get a job”. Whether Lord Justice Pitchford’s statements can be simplified this way can be debated, but he did point out that “the world of work has innumerable possibilities these days … vast numbers of women with children just get on with it and Mrs Wright should have done the same”.
The judge made it very clear that a divorcing spouse would be expected to make effort to seek work and update his or her skills as necessary.
The final decision was that Mrs Wright’s personal maintenance payments would cease, with a gradual tailing off over a five-year period leading up to Mr Wright’s retirement.
It is also worth considering that the Wright case is not unique. In a recent judgment by Judge Mostyn in the High Court case of SS v NS [2014] EWHC 4183 (Fam), it was also concluded that a divorcing spouse cannot realistically expect to have his or her income needs met by a former partner for many years after the divorce. The courts will not treat an unwillingness to work as a good enough reason to expect payments to continue longer than is necessary.
Each case is decided on its facts, but the message is clear: maintenance orders no longer guarantee an income for life. The courts will try to achieve a clean break wherever possible, even if this is at some point in the future.