Court decision out of kilter with Scots law

The law regarding support of a child carer after divorce could change. Picture: PA

The recent decision of Lord Justice Pitchford in the Court of Appeal could have a huge impact on how the former partners of wealthy spouses are treated in England and Wales after he proclaimed that divorcées who have children over the age of seven should work.

Tracey Wright, a mother-of-two, had sought to challenge the decision of a family court judge cutting her award of future maintenance.

She had decided not to continue with her work as a legal secretary or riding instructor after marrying Ian Malcolm Wright, a millionaire horse surgeon, in 1997. After 11 years of marriage, the couple separated in 2008. In the ensuing divorce an order was ultimately made stating that the former matrimonial home (valued at £1.3 million with seven bedrooms and 16 acres) should be sold, with the net free proceeds divided between Mr and Ms Wright. The court also held that Ms Wright was entitled to a £450,000, mortgage-free house as well as stabling for her horse and her daughter’s ponies.

In addition to the above, Mr Wright was ordered to pay his ex-wife and their children £75,000 a year in school fees and maintenance, £33,200 of which was for Ms Wright’s own personal upkeep. He subsequently appealed to the High Court, arguing that that award was unfair in that it placed an expectation on him to support Ms Wright for the rest of her life while she made “no effort whatsoever to seek work”. The judge agreed, telling Ms Wright to find employment like “vast numbers of other women with children” do.

That decision has now been upheld by the Court of Appeal, with Lord Justice Pitchford stating Ms Wright should find a job and that she has no right to expect “an income for life” at the expense of her ex-husband.

The Court of Appeal heard that whilst Mr Wright had been making the school fee and maintenance payments timeously, he was concerned he would not be able to continue to do so upon his retirement. Lord Justice Pitchford consequently stated that it is now “imperative that the wife go out to work and support herself”, adding that: “The time had come to recognise that, at the time of his retirement, the husband should not be paying spousal maintenance.”

He went on to say that “The wife had done nothing since 2008 to look for work, retrain or to prepare herself for work… There is a general expectation that, once children are in year two (i.e. seven years old), mothers can begin part-time work and make a financial contribution.”

Lord Justice Pitchford concluded by noting that the order of the family court “was never intended to provide the wife with an income for life” and that: “The onus will henceforth be on her.” This is a landmark decision. It shows that in England and Wales a divorcing spouse cannot realistically expect to have their income needs met by their former partner for many years after the divorce, particularly where they can reasonably be expected to work. The case also demonstrates that the English courts will not treat an unwillingness to work as a good enough reason to expect maintenance payments to continue longer than is necessary for a divorcing spouse’s needs to be met whilst they re-train for a return to work. Compare that with the current position in Scotland where spouses will only be awarded continuing maintenance after divorce if the paying spouse cannot pay a satisfactory capital sum, and even then ongoing maintenance will ordinarily only be payable for a maximum of three years.

The full judgment has not yet been published, but it is a decision that may well see a rise in the number of people in England and Wales going to court to reduce or cancel existing maintenance orders. Over recent years there has been a shift in the way the English courts view primary care-givers who have given up their careers to raise their children, with them now being told to contribute financially (whether through retraining or gaining employment) where once they were being compensated for the loss of their career and earnings.

• Iain Thomson is a solicitor in the Family Law team at Balfour+Manson

www.balfour-manson.co.uk