Holy manimony

The relationship between working patterns and parties’ roles in a marriage has changed rapidly over the past decade and exponentially since the COVID-19 pandemic. Traditionally, the wife would stay home while the husband worked; however, few relationships now operate on this basis. There are myriad arrangements, carefully considered and designed to best meet the family’s individual needs.

One person often takes the lead in earning the money while the other prioritises the home. The result is that maintenance provisions that have historically supported women at the end of a relationship are often now applied to men, with women being ordered to pay men ongoing maintenance or ‘manimony’. It is a change that has provoked interesting responses from both the payer and the payee. Anecdotally, women are less comfortable in the paying role than men have been. This is possibly because even if they are working hard to earn an income, they continue to take on extensive roles at home. Indeed, it is Baroness Deech who is urging the UK Parliament to introduce a five-year cut-off for spousal maintenance (except in cases of financial hardship).

Global comparisons

Running alongside this change in roles at home is continued globalisation. A secondment to another jurisdiction or a period living in another country are both relatively common. An awareness of the impact of both the change in roles and living in other jurisdictions is increasingly important.

The English and Welsh courts are perceived as generous to potential payees. Spousal and child maintenance awards are routinely made but the approach to ongoing maintenance obligations varies hugely across jurisdictions, even within the UK.

Across the border in Scotland, it is rare for any support to be made between spouses following their divorce. Maintenance is only awarded in very few certain circumstances and, if it is awarded, it is for a maximum of three years. Scottish family law centralises itself on the principles of independence and a ‘clean break’.

In France, it is estimated that maintenance awards are made in fewer than 20 per cent of cases. If maintenance is awarded in these limited circumstances, then it certainly will not be at a level for the party to maintain the standard of living which they enjoyed throughout the marriage. In quite a stark contrast, while France promotes autonomy on divorce, it is a jurisdiction in which the court can order one spouse to pay maintenance to the other during the marriage.

On the other side of the world, in Australia, ongoing maintenance is also less common. Conversely, jurisdictions such as Ireland and New Zealand are more receptive to such orders. In Ireland, the obligation to maintain an ex-spouse continues after divorce until death or remarriage and, in fact, there is no clean break under Irish law, with courts being able to make changes to any maintenance orders at any point. Although ongoing spousal maintenance is not necessarily ordered frequently in New Zealand, when it is awarded the jurisdiction is known to be generous, especially where there was a high standard of living during the marriage.

Cross-border considerations

Consequently, jurisdictional disputes to determine the country in which the divorce should take place are common, with the financially weaker party almost always arguing for London and the stronger party arguing for elsewhere. When considering whether this is a fight worth having, there are some points that advisors must consider.

Equal entitlements

Are men and women equally entitled to maintenance in the competing jurisdiction, as they are in England and Wales? If so, is there likely to be an inherent bias against ordering women to pay men maintenance? In a Forbes article by journalist Emma Johnson,[1] she states that ‘of the 400,000 people in the United States receiving post-divorce spousal maintenance, just 3 percent were men … yet 40 percent of households are headed by female breadwinners – suggesting that hundreds of thousands of men are eligible for alimony, yet don’t receive it’. On the clients’ side, some of the reasons Johnson suggests are ‘die-hard gender roles’, bitter fights from ‘breadwinning wives’ and ‘macho pride’. From the courts’ side, Johnson deems it as simple as ‘in some parts of the country, judges are flat-out sexist’. With gender roles continuing to change and the employment rate moving towards equality between men and women (e.g., in 1971, England saw 52.8 per cent of women in the workplace and 92.1 per cent of men, compared to the Q2 2023 figures of 72.1 per cent and 79.4 per cent, respectively).[2] It will be interesting to watch this space for the ‘norm’ to be shaken up and biases across different jurisdictions to be further uncovered.

What are the rules in the competing jurisdiction? Sometimes the calculation is based on achieving fairness but in many countries there are precise calculations that cap the scope of awards.

Independence

What is the attitude to self-sufficiency? Historically, in England and Wales, joint lives maintenance orders were the norm, but in recent case law the court’s objective has been to enable a party to make a transition to independence. SS v NS illustrates the changing approach in England and Wales to spousal maintenance.[3] The husband, aged 40, and wife, aged 39, had been together for 11 years. The husband was very successful in his job but was reducing his workload for health reasons. The wife had not worked since their first child was born, but had taken on part-time work during the proceedings.

Justice Mostyn gave guidance that ‘a degree of (not undue) hardship in making the transition to independence is acceptable’ and he put forward 11 principles that decisions relating to the provision of maintenance should address, including when it would be appropriate for there to be a clean break. Most spousal maintenance orders are limited in time and have step-down provisions to encourage financial independence.

SS was followed by Wright v Wright,[4] which reinforced the changing approach. On considering an application from the husband to vary the order due to his impending retirement, Judge Lynn Roberts agreed with him. Roberts J was very critical of Mrs Wright making no attempt to seek work or update her skills on the basis she would be supported for life. Roberts J ordered that the maintenance for the wife should cease with a gradual tailing-off period over five years, to tie in with the husband’s retirement at 65. Mrs Wright appealed and the England and Wales Court of Appeal held in favour of her husband, with Lord Justice Pitchfold telling the wife 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’.

However, in other jurisdictions the approach is even more robust. In Finland, maintenance orders are incredibly rare, and in Russia, awards are made only to meet the most basic needs.

Child maintenance

What is the likely child maintenance calculation in England and Wales? Unlike spousal maintenance, child maintenance is calculated with reference to a fixed statutory formula. However, this does not apply in cases where one or more parties are outside the jurisdiction or where the paying party has an income in excess of GBP156,000. In those cases, the courts will usually be led by the statutory formula but this can result in very high assessments. Recent case law from Mostyn J in James v Seymour gave guidance as to the sums to be paid for those earning in excess of GBP156,000.[5]

Another important question to consider is whether future earnings are capable of being shared. This is not a resource for sharing under English and Welsh law. Further, can an application be filed in England and Wales under Part III of the Matrimonial and Family Proceedings Act 1984, even if the divorce takes place in another jurisdiction?

Conclusion

All these issues need to be considered in advance of committing resources to a dispute around jurisdiction. Such expensive arguments should only be embarked upon if the benefit of succeeding far outweighs the costs that will be incurred. Sometimes the benefit is stark and obvious, but if it is not then advice in both jurisdictions should be taken on an urgent basis.

[1] bit.ly/46VzpKP

[2] According to the Office for National Statistics (UK), bit.ly/3SeCvDk

[3] [2014] EWHC 4183 (Fam)

[4] [2015] EWCA Civ 201

[5] [2023] EWHC 844 (Fam)