Spousal Maintenance

Summary

1. INTRODUCTION

This chapter examines the law on spousal maintenance, a subject on which John Eekelaar has written critically and forthrightly. In his inimitable way, he has homed in on the syndrome described so well by P.G. Wodehouse : ‘Judges, as a class, display, in the matter of arranging alimony, that reckless generosity that is found only in men who are giving away somebody else’s cash’. For example, John did not pull his punches in ‘Shared Income after Divorce: A Step too Far’, his commentary on the notorious decision of the Court of Appeal in McFarlane v. McFarlane; Parlour v. Parlour. He ended with this sharp observation:

And should the courts feel reticent about following principles which do not appear on the face of the statute, it should be remembered that they have done this ever since the conferment of the discretion in 1858. One thinks of the early fault-based principles, of the so-called ‘two-thirds’ rule, of the principle of keeping the parties in the position they would have been in had the marriage not broken down (thought to be well established before its later statutory enactment, and later repeal), of the preference for maintaining a home for the children and, indeed, of the yardstick of equality itself.

John wrote that in 2005. In the ensuing 16 years, there has been no reticence by the judiciary in unearthing hitherto undiscovered non-statutory principles, especially in the field of spousal maintenance, for which this author must claim some responsibility.

When the court decides to make an order for post-divorce spousal maintenance, the legal power for the award is well known: section 23(1)(a) of the Matrimonial Causes Act 1973. But what is the legal basis for the exercise of the power? Put another way, what are the moral factors that guide the exercise of the power?

2. HISTORICAL BACKGROUND

In his speech ‘Changes over the Centuries in the Financial Consequences of Divorce’ (Address to the University of Bristol Law Club) on 20 March 2017, Lord Wilson set out the historical background. He engaged in deep legal archaeology and explained how the Victorian obsession with sex, guilt and fault were the main drivers in the formulation of the originating principles.