One of the questions I get asked as a divorce lawyer is “does my husband have to support me if I don’t work and we get divorced?” The answer is - it depends.
It varies from case to case as the circumstances of every marriage are different. However, the wife needs to be aware that a judge will consider her earning capacity and expect her to obtain work if she is deemed to have an earning capacity.
The likely range of outcomes is as follows…
Clean Break Settlements
If the wife is deemed to have an earning capacity that is sufficient to meet her income needs, she may not receive any maintenance from her spouse. This would be a clean break settlement.
In some cases, where a wife has a legitimate claim for maintenance and where the couple have sufficient capital assets, a settlement may be agreed where a one-off payment is made by the husband to the wife in lieu of maintenance. Here the husband is essentially “buying off” the wife’s maintenance claim. This payment would be in addition to the wife’s claims for capital, property and pensions within the divorce.
Joint Lives Maintenance Orders
In some cases, particularly where the wife is the main carer of young children, the husband may have to pay maintenance by way of a ‘lifetime maintenance order’.
This is also known as ‘joint lives maintenance’ as the maintenance payments will automatically end on the death of one of the spouses. The maintenance payments will also automatically stop if the wife remarries.
Maintenance orders can be varied or terminated by a further order of the court.
Fixed Term Maintenance Orders
We are now seeing a movement away from joint lives maintenance orders and an increase in fixed term maintenance orders, which are for a specific number of years. For example, maintenance may be paid until a wife can draw down her pension at 60.
These maintenance orders will also automatically end if the wife remarries or either spouse dies. They can also be varied or terminated before the end of the fixed term by another court order.
Time-limited maintenance orders are preferred to joint lives maintenance orders across most of Europe.
In Scotland, the homemaker, who is usually the ex-wife, is typically awarded three years of maintenance only and thereafter must establish their financial independence.
The ‘Get a Job’ Divorce Ruling
The movement away from joint lives maintenance orders is reflected in the 2015 case of Tracey Wright.
The Wrights divorced in 2008. As part of her financial settlement, former horse riding instructor Tracey was awarded joint lives maintenance of £32,200 per year in addition to child maintenance, a mortgage-free house and stables for her horses.
In 2012, Mr Wright, who made his wealth working as a surgeon for racehorses, applied to vary her maintenance payments, raising the issue of Tracey’s earning capacity.
The fact that his financial circumstances had taken a down turn and that he should not have to support his former wife beyond his retirement whilst she did not work.
The judge agreed. He told Tracey to ‘get a job’ and varied the amount of maintenance that she received downwards over a period of years, with these payments stopping when it is anticipated Mr Wright will retire.
Fiona Wood is a family lawyer at Slater and Gordon in Manchester.