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Top judge calls for overhaul of marriage law and says it’s risible that men must pay ex-wives for life

The most senior family judge in Britain, Sir James Munby, says people will one day laugh at the idea of men supporting ex-wives for life and highlighted 'absurd' divorce settlements. 

The starting point in any matrimonial dispute is the requirement of the Court to consider there  being a clean financial break as between the parties. Further legal authority has built up around the definitions of the weaker party being able to adjust without financial hardship. What degree of hardship is acceptable? Some hardship is inevitable as the Court sees one household become two.. But how grave can the hardship be to remain acceptable? 

Whilst it was settled in the senior courts some time ago that maintenance claims must be based on demonstrated need and not merely about fairness so making such claims more difficult, nevertheless long maintenance orders continue to be made. The Courts in the south of the country have a greater tendency to make spousal maintenance orders as a matter of course when there are children involved even where both parties earn similarly, although this may only be for 5p per annum. This leads it open to vary upwards if required at a later date and offers the receiving party a safety net. 

Fairness as any sort of guide to the Court has on maintenance claims only really informed the Judge hearing the case in large income/asset cases as to what the wifes (usually)  reasonable income needs are. Here, the standard of living enjoyed by the parties may weigh in if making an order is not likely to detract from the paying parties lifestyle to a significant degree. Is it possible after child support is accounted for to ensure the children continue to enjoy the same lifestyle as the now absent parent? 

What was often cited was the need to recognise one party was exiting the marriage in a financially weaker position particularly because they had to be a main carer for children or discouraged to work. The  high earner had been more available to develop their earning capacity. We found this argument held sway more in previous years before the sea change of White & White where a wifes reasonable requirements as a guide were recognised as not following the law which should meet need and offer fairness. Fairness meant a starting point of equality and needs may mean more. Therefore if both were getting at least half of the assets or even more (to meet immediate housing need) why should maintenance be expected on top? 

One is usually representing a wife or mother in these situations but on occasion when I have represented the husband you can see the cocking of a judicial eyebrow when a maintenance expectation is set out. Gender bias- albeit unspoken and even subconscious. 

It is true no one should have an expectation to be supported for life. But every case must be considered separately and turn on its facts. A safety net when someone is returning to work after a long absence or has long running health issue may require support or a safety net. Let us not legislate against that discretion.