23 March 2018
The Court has emphasised that sharing stops on divorce — so logic dictates that with the marriage over, sharing has no place in the assessment of maintenance. The correct goal is to empower individuals, after a divorce, to make the transition to independence. In Scotland maintenance is formulaic and short-lived — financial independence is de rigueur. The Law Commission into Matrimonial Property, Needs and Agreements published in February 2014 underlined the differing practices around the courts in England and Wales producing a 'postcode lottery'. The differing levels of generosity leading to the colourful illustration that a family court judge is like a bus driver who has been told how to drive and told he must drive, but has not been told where to go, nor why he is to go there. The legislation is unlikely to be changed in the near future but we feel the Commission has put its finger on a cardinal issue and there will be changes in practice giving real force to the objective of financial independence. We foresee there will be more term orders ie maintenance for a fixed number of years and any preoccupation with the standard of living enjoyed during the marriage will be no barrier to self reliance. Of course it may not be possible or fair, in every case, to achieve financial autonomy but there must surely be few situations when it cannot be achieved by the date of a paying spouse's retirement. This change of philosophy will be pertinent to those on open-ended Joint Lives Maintenance Orders who may like to consider whether the time has come to review/to end the conduit of dependency by an application to bring maintenance to an end and achieve a clean break. Depending upon all the circumstances there will be cases when termination will cause hardship or will only be fair if a lump sum payment is made to smooth the path to independence — so the question will always be: in what terms precisely should the termination take place? It seems to us that applications of this nature are well suited to ADR — be it mediation or arbitration. Perhaps one day we shall adopt a formulaic approach to the calculation of maintenance as in Canada but there is little appetite to do this today. We may have got the tea-leaves wrong but watch this space over the coming years.