“Joint lives‚Äù spousal maintenance orders start to be questioned

Date: 13 May 2015

Citywealth

Debbie Chism, Partner at Stewarts Law, says changes in men and women’s earning capacities within the family led to a large number of requests to shorten or terminate “joint lives‚Äù spousal maintenance orders.

What interesting cases of divorce have you been dealing with recently?

There has been an exponential rise this year in requests for prenuptial and postnuptial agreements as high-net-worth clients and their advisors now finally realise that these agreements have genuine currency and are likely to be carried into effect under English law. Although we have been giving this advice since the well-publicised Supreme Court decision in Radmacher in 2010 and there has been a gradual increase in demand for pre-nups and post-nups over time, this year has seen a huge surge in instructions.

What lessons we can learn from them?

Prevention is definitely better than cure when it comes to divorce – thinking about the issues now, particularly with the international implications – can be invaluable not only from a financial perspective but also helping the couple to avoid the conflict that can arise if a marriage breaks down.
Whilst there is no doubt that these agreements carry benefits, they should also carry health warnings. The drafting and negotiation can cause a great deal of distress as minds are focussed on what should happen if the marriage fails. It is sensible to allow plenty of time to raise the concept and discuss the terms well in advance of the proposed date of marriage.
The negotiation of these cases can be conducted collaboratively, highlighting the fact that family lawyers are able to and can do so much more than simply litigate.

What trends are you seeing in family law?

We have seen a large number of requests to terminate, revisit, or shorten “joint lives‚Äù spousal maintenance orders. Again, the publicity given to recent cases (SS v NS per Mostyn J) and Wright, have ignited the public’s interest and a debate on spousal maintenance. Family law is a social barometer which is why it is one of the most interesting areas of the law to work in. Although there has been no change in the law as a result of these cases, there has been “a change in the guard‚Äù of the judiciary making the decisions on their cases. Their views as to the changing roles of men and women, their respective abilities and earning capacities within the family are illustrated in the recent outcomes. The objective of maintenance is to transition spouses to financial independence where that is possible ‚Äì in the current social and economic climate, that is more likely to be viewed as achievable than it was historically the case.