Ella Welsby

Ella Welsby

Solicitor at Vardags

Ella Welsby discusses potential divorce reform

“To marry for money, I think the wickedest thing in existence” declared Austen’s Catherine Morland. Despite decades of social progress, it sticks in the craw that the fastest way for a woman to secure her financial future is to marry a rich partner. As women have gained access to education and employment, the argument for financial independence has gained traction. Are the days of ‘Cinderella syndrome’ numbered? Will little girls dream of amassing bitcoin fortunes instead of marrying princes to live happily ever after?

Baroness Deech has been the driving force behind a private members bill which has now progressed to committee stage. One motivation is discouraging fortune-hunting; as she ruefully noted in the FT, “Never mind about A-levels or a degree or taking the Bar course – come out and find a footballer”.

The zeitgeist typified by recent cases such as Waggott points toward a sea change with maintenance awards getting generally smaller and awarded for ever-shorter time periods, particularly in the North of England. Deech’s view is that if women expect to make up 50% of the Supreme Court and FTSE boards then you can’t have your feminist cake and eat it too.

Some of the changes mooted have proved popular, specifically the abolition of fault-based divorce and the statutory backing of pre and post-nuptial agreements. However, the proposed change to spousal maintenance poses greater problems. The bill would impose a maintenance limit of 5 years, except where grave financial hardship would result. Would this reform make things fairer or are we at risk of the pendulum swinging too far, back to the dark days of Dart? Is the end to ‘meal tickets for life’ as progressive as it first appears or is the bill overly idealistic, with too high a price placed on predictability at the expense of justice?

60-month maintenance cap

The biological cruelty of the fact that the age when people most commonly have children coincides with their career ‘power’ years needs to be considered. This vulnerability is compounded as their spouse is likely to be hitting his/her stride accruing promotions and ever more lucrative salary packages, polarising the couple’s financial security. 

Let’s say a spouse has taken 10 years out of work to raise children and support their partner’s career. If they divorce, the bill would see them without a guaranteed income after 5 years or less. If previously a professional, they can’t return at the level they left. It’s not just women. ‘Stay-at home’ fathers might also find themselves facing a stark financial future. The more time out, the harder things will prove – their industry may have revolutionised in the interim. Is it antiquated chivalry motivating judges to provide longer term maintenance or actually a means to redress a financial inequality and ensure a dignified transition to financial independence for both? Lord Bishop would argue the latter, having suggested that 7-10 years might be a more viable timeframe. Indeed, Lady Hale has suggested that in some circumstances open-ended periodic payments are required to “give each party an equal start on the road to independent living”.

They may have graduated from university with their partners and followed similar career paths until children came along. To then have to contemplate entry-level roles and clamber back up the ladder from the bottom can prove challenging. The camera cuts to their former partner sitting pretty in a corner office, riding the wave of financial success. Deech has argued that “the certainty of misery is better than the misery of uncertainty”, but the law has developed to provide a bespoke ‘fair’ financial outcome, are we now prepared to throw this away?

Checked your privilege?

In a 2009 interview, Deech argued that, “You can't cry for equal pay and treatment on one hand, but then expect to be a kept woman on the other”. The presumption that women want to smash the glass ceiling but at a certain point plump for lunching in Lululemon at their husband’s expense, is at best reductive, and at worst patronising. For the majority, whether one party will need to give up work or reduce their hours is not a “lifestyle choice” as Beech put it, but a financial necessity. There are more working mothers with higher-paid husbands, with many leaving the workforce because they cannot afford childcare.

One argument in support of a cap is that such restrictions already operate in Northern Europe, Russia, Canada and some American states. However, some of these nations provide subsidised childcare. In Sweden where maintenance is generally only awarded for 3 years, only 4.7% of the average family’s household budget is spent on childcare. In the UK it is 26.6%. What’s more reform would disproportionately disadvantage lower-earning mothers. Increases in maternal employment are highest for the partners of higher-earning men: for every additional mother in employment partnered with a lower-earning man, there are around two in relationships with higher-earning men. Deech herself noted at the second reading that in most other countries where maintenance is capped, women feel less discriminated, yet this was caveated by the facts that in such jurisdictions, women already benefit from more equal pay and better childcare. She herself was able to continue working because St Ann’s College where she worked as a lecturer, had a staff crèche: a perk offered by less than 5% of employers.

Predictability in all things?

Yes, more predictability could offer less acrimony, lower legal fees and more uniformity in outcome, doing away with postcode lotteries. However a 10 year time limit or possibly a means-tested provision could result in more predictability without compromising fairness. Astute amendments to the bill might ensure we achieve indicative algorithms as opposed to a rigid formula. On this issue one size won’t fit all. Safeguarding a measure of judicial flexibility would allow both parties to work towards a clean break, pegged to a timeframe which reflects family finances and situation.

Catherine Morland’s view on spousal maintenance is a foregone conclusion; she would have demanded a prenup before marrying into Tilney family wealth.