A recent report comparing spousal maintenance provisions across the world found that England and Wales is one of the most generous jurisdictions when it comes to providing for financially dependent spouses after divorce.
The report, prepared by the international family law team at Penningtons Manches, compared current legislation and case law across 16 jurisdictions.
In some countries such as the UAE and Israel, the report found that little, if any, provision exists for ongoing spousal maintenance. In both of those countries, there is no concept of ongoing maintenance after divorce under the prevailing religious laws.
In countries where spousal maintenance is awarded, the length of the marriage was found to be an important consideration in most jurisdictions, with longer marriages generally seen to result in greater financial inter-dependence, justifying the imposition of greater ongoing obligations on the financially stronger party to support the weaker one.
Where countries that award spousal maintenance were found to differ, was in determining how long maintenance should continue. In some jurisdictions such as Scotland, Sweden, Finland and New Zealand, maintenance is seen as restorative only, and the court’s focus is on achieving financial independence for both spouses. In these jurisdictions, spousal maintenance is not usually ordered, save perhaps for a short period to allow the receiving party to “get back on their feet”, or in exceptional circumstances.
On the other end of the spectrum, in India, California, Singapore and Nigeria, maintenance orders are often made on an ongoing basis (albeit that the dependent spouse is usually expected to make some efforts to become self-sufficient). England and Wales fell closer to the dependency model favoured in these countries, than the self-sufficiency model favoured in others, the report found.
But the winds of change are blowing in England and Wales. Baroness Deech recently introduced a private members’ bill (the Divorce (Financial Provision) Bill) which includes a five year cut off for spousal maintenance, save in cases of serious financial hardship. Further, recent cases such as SS v NS and Wright v Wright suggest that there is an increasing expectation that ex-spouses should become self-sufficient following separation. In SS v NS, for instance, Mr Justice Mostyn emphasised that under statute, maintenance should only be paid for such a period as to enable the receiving party to transition to independence without undue hardship. Some hardship, he noted, is acceptable.
The findings of this report are particularly relevant to international couples. If one or both spouses are expats in England and Wales, or if one or both live and/or work in another country, the question of where to start divorce proceedings may not be clear cut. As this report demonstrates, the outcome of a court dispute concerning finances may be very different depending on which jurisdiction is chosen. The decision on where to issue divorce proceedings is therefore very important. Further, it is important to act quickly, because once proceedings have been issued by one party, the other party is often stuck with that country’s courts. International couples considering divorce should therefore seek advice as soon as possible from family law specialists in both jurisdictions to determine which jurisdiction would be likely to produce a more favourable outcome, and whether proceedings can legitimately be issued there.
Elizabeth Chapman Aitken Harter Solicitors
Family and Criminal law specialists
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