The Fair Shares project, funded by the Nuffield Foundation, is a research initiative focusing on understanding divorcing couples' financial and property arrangements. The project examines how financial resources are divided upon divorce and how these arrangements come about, with the aim to provide evidence-based insight that policymakers and organisations can use to reform legal systems.
The Fair Shares project has recently published a report prepared by Professor Emma Hitchings of the University of Bristol and Caroline Bryson of Bryson Purdon Social Research, addressing regional variations in spousal maintenance throughout England and Wales. In this article, we are going to explore the findings of the report and consider whether the prevalence of spousal maintenance varies across geographical locations of divorcing couples.
What is spousal maintenance?
Spousal maintenance is a financial arrangement where one spouse/former spouse is required to financially support the other during or following a divorce. It is a form of financial remedy and can be ordered by the family court or voluntarily agreed between spouses. It is distinct from child maintenance. There is no automatic entitlement to spousal maintenance, and it is determined on a variety of factors that reflect the financial needs and resources of both spouses.
The aim of spousal maintenance is to address the financial disparity between spouses, to ensure the financially disadvantaged spouse can maintain a reasonable standard of living during and post-divorce. In rare cases, maintenance can be indefinite, but most commonly it is paid for a specific period, often to allow the recipient spouse time to become financially independent.
The law surrounding spousal maintenance
The law governing financial remedy is primarily The Matrimonial Causes Act 1973 (MCA 1973), which applies uniformly across England and Wales. When considering financial remedy cases, the family court must consider the factors under Section 25 MCA 1973 which includes:
- The financial resources of both parties including income, earning capacity, property.
- The needs, obligations, and responsibilities of both parties.
- The standard of living during the marriage.
- Contributions made by each party, both financial and non-financial.
- The duration of the marriage and the ages of the parties.
In their recent report, the Fair Shares project reported there are certain regions in England and Wales where spousal maintenance is more common. But if the family courts throughout England and Wales are required to implement the same law when determining financial settlement, how can the prevalence of spousal maintenance vary across the regions?
The findings of the Fair Shares report
The Fair Shares project has reported in their study only 22% of divorces involved spousal maintenance, with women more likely than men to receive maintenance. With few exceptions, most cases were for a fixed term. The majority of cases considered involved children, and the project reported a strong correlation between spousal maintenance and having children. The project also reported that in the study, spousal maintenance arrangements were more common in cases where the parties received legal support or were legally represented in the divorce process.
The Fair Shares project has recently reported that spousal maintenance arrangements are much more common in London than in other regions in England and Wales. In the study, twice as many divorces in London involved a spousal maintenance arrangement compared to the other areas, and this applied to cases with different levels of assets. The report concluded that in the cases involving children, spousal maintenance was much more common in London cases compared to other regions.
The report also considered whether the variations between London and other regions related to whether the spouses received legal advice. In the study, amongst those who used a lawyer, almost three times as many divorcees in London had spousal maintenance arrangements compared to the other regions. However, among those who had not used a lawyer, there was still a difference between London and the other regions, albeit not as significant. Of those who formalised their arrangement in a court order, the Fair Shares project reported rates of spousal maintenance were twice as high in London compared to the other regions. Amongst those who had a spousal maintenance arrangement but had not made it into an order, the rates were still significantly higher in London compared to the other regions.
Why is there a difference in the prevalence of spousal maintenance across the regions, and why is it more common in London?
There are a number of socioeconomic economic factors which may impact the prevalence rates of spousal maintenance across the regions:
- Judicial discretion and differences in local practices – in cases in the family courts, spousal maintenance is a matter of judicial discretion. Judges in different regions may interpret legislation and legal guidelines differently which can lead to inconsistency across the regions.
- Cost of living – regional differences in cost of living and property prices may influence spousal maintenance awards. For example, in areas with higher housing costs, such as London, the court may be more inclined to grant spousal maintenance to ensure the receiving spouse can meet their needs.
- Employment opportunities and earning potential – in regions with lower average earnings or fewer employment opportunities, spousal maintenance may be less common because it may not be a financially viable option. In regions with higher income and employment opportunities, the disparities in spouses’ income can be significant and spousal maintenance might be necessary in order to balance the financial positions of both spouses.
- Legal culture – lawyers in London may be more likely to suggest spousal maintenance because the combination of higher incomes and higher costs of living they see has led to a particular need for spousal maintenance.
- Demographic and social trends – regions with higher rates of one spouse leaving their employment role to care for children may see a higher level of maintenance awards.
So what does this mean?
It is very interesting to note that the findings of the Fair Shares Report suggests there is a geographical variation in spousal maintenance across England and Wales, with rates significantly higher in London compared to other regions. Policy-makers have for many years expressed concern about regional disparities in the prevalence of spousal maintenance being awarded by different courts. In 2014, the Law Commission highlighted that whilst judicial discretion is an important feature of our legal system, it can result in unpredictable and inconsistent awards throughout the country, which in turn creates difficulties for divorcing couples and legal practitioners attempting to predict outcomes. The Law Commission are due to publish a scoping paper on 18 December 2024 and it has been reported that whilst the paper may not contain recommendations for reform, it will be a toolkit for the government on whether the law on financial remedies should be reformed.
View the full Fair Shares report here: Spousal maintenance across regions
At Tees, our family law specialists are well-versed in the intricacies of financial remedies. We explore all options, including spousal maintenance, to secure the best possible outcome for our clients. If you or anyone you know requires advice or would like to discuss matters, please do get in touch.
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