The following may come as a surprise to many people.
In English law, a Decree Absolute does not sever the financial ties between former spouses.
Even if you agreed on the division of finances at the time of the divorce, unless the agreement has been made legally binding in the Courts, your ex-spouse can make a financial claim against you in the future. There is no time limit in place, so it could be a matter of years before a claim is made.
It may be that one person acquires a considerable amount of money after the divorce, perhaps through business success or an inheritance. If so, someone may make a claim on their ex-spouse’s new found wealth.
What are the Moral and Ethical Justifications of a Meal Ticket for Life?
Mr Justice Mostyn: SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam)
25. Although spousal maintenance (formerly known as alimony, but which now perhaps should now be known more accurately as ex-spousal maintenance) has been with us for generations it is a strange fact that there is not much discussion in the jurisprudence of the moral or ethical question of why after the dissolution of a marriage the law permits the imposition on a party of the obligation to pay spousal maintenance potentially until the death of the payee (even, in the case of a secured periodical payments order, after the death of the payer).
26. I have tried to explain that an order for spousal periodical payments can only be made in order to meet needs, save in a wholly exceptional case: see B v S [2012] EWHC 265 (Fam) at paras 75 – 79. But my analysis only explains the parameters of the discretion; it does not ask or answer the question why on the dissolution of a contract of marriage such a liability can or should arise in the first place.
27. This is a matter of important social policy. In places like Scotland, Sweden and New Zealand the social policy has been addressed by legislation which has provided that save in highly exceptional circumstances the obligation to maintain should not be imposed save for a short period. In Scotland it is 3 years. It is interesting that at the moment there is a Bill before Parliament, the Divorce (Financial Provision) Bill, introduced by Baroness Deech of Cumnor, which would create a similar limit in England and Wales
For my part I find it difficult to see why it is just and reasonable that an ex- husband should have to pay spousal maintenance or enhanced spousal maintenance by reference to factors which are not causally connected to the marriage, unless one is looking at the issue in a macro-economic utilitarian way and deciding that in such circumstances it is better that the ex-husband picks up the cost of the ex-wife’s support rather than the hard-pressed taxpayer. This, again, is a matter of social policy. But I would suggest that in such a case spousal maintenance payments should only be awarded to alleviate significant hardship.
Extract from The Financial Consequences of Divorce: The Basic Policy. Law Commission Report No. 103. 1980 (at para 30)
(ii) The change in the juristic basis of divorce from matrimonial offence to irretrievable breakdown has fundamentally altered the validity of the law’s approach to support obligations. On this argument the obligation to provide life-long support is based on the analogy between marriage and contract, under which compensation would be available for its breach.
Consequently, it is argued that now that divorce is available whenever the marriage has broken down, irrespective of whether one or the other of the parties is in breach of his or her matrimonial obligations, it is inappropriate for the law to continue to found the parties’ respective financial obligations after divorce on the now largely irrelevant notion of breach of duty; and it is unjust to do so since the present law may require a man to maintain his wife when she has herself been entirely responsible for the breakdown .
Is maintenance a meal ticket for life? – www.kingsleynapley.co.uk
Maintenance or periodical payments – known as alimony in the USA – is the ongoing payment after the end of a marriage by one spouse to the other [Not to be confused with child maintenance]. In practice, maintenance is most often paid by a husband to a wife. Because of the ongoing financial relationship created, a maintenance order is the flip side of a “clean break” – a clean break ends the parties’ financial interdependence, a maintenance order continues it.
A maintenance order may be for a defined period of time (“term” orders), or for “joint lives”. Joint lives means that the obligation continues until the recipient remarries, the payer or payee dies or the court makes a further order. A joint lives order is, from the payer’s perspective, the most onerous of maintenance orders. To end the obligation, or change the amount payable, the payer must either reach an agreement with the recipient, or else apply to the Court to vary.
So, what type of maintenance order is suitable in any given case? At the heart of this enquiry is the question, “When is it reasonable in the circumstances of the particular case for the recipient’s financial dependence on the payer of maintenance to end – if ever?”
We often find Judges (particularly those sitting in Central London) reluctant to make term orders. This is due to their reluctance to “crystal ball gaze” – to look into the future and predict when the recipient of maintenance should be able to adjust, without undue financial hardship, to the end of financial dependence on the former spouse. Accordingly, joint lives orders tend to be the default setting.
Whatever one’s personal view, there are plenty of arguments which we can deploy on our clients’ behalves, whether acting for the payer of maintenance or the recipient as to what is the appropriate form of order.
The last the above illustrates where divorce lawyers make their money.
Extract from “Grounds For Divorce” – Davis and Murch
Divorce proceedings provide the framework in which these other, far more, urgent matters can be dealt with. The sooner the divorce is set in train, the sooner a maintenance application can be filed or, say, an ‘ouster’ injunction sought in order to remove the husband from the matrimonial home.
Extracts from The Law Commission Report No. 343 – MATRIMONIAL PROPERTY, NEEDS AND AGREEMENTS
1.22 …. individuals struggle to know what the law requires of them. The meaning of “financial needs” is not defined in the statute, and yet it is an issue of central importance in most divorces. The statute gives judges a wide discretion to make financial orders in the light of all the circumstances, but does not say what is to be achieved. Nowhere in the law itself – only in the practice of the courts – can we find any indication that financial needs do have to be met after the ending of marriage or civil partnership, but not generally for ever. The eventual end result is usually independence; but the law gives its users no guidance about this.
2.4 Nor does the statute say what the orders are to achieve. Clearly the court may make an order that H must make periodical payments to W or vice versa, or it may make no such order at all. But in what circumstances might it do so, and for how long should those payments continue? Again, the court may make an order that determines who is to live in the family home, when it is to be sold and in what proportions the sale proceeds are to be divided, but no indication is given as to why such an order should be made.
The task of the family judge has been likened to that of:
… a bus driver who is given a large number of instructions about how to drive the bus, and the authority to do various actions such as turning left or right. There is also the occasional advice or correction offered by three senior drivers. The one piece of information which he or she is not given is where to take the bus. All he or she is told is that the driver is required to drive to a reasonable destination.