England has a reputation around the world for awarding generous payouts to the financially weaker party in a divorce. A prenuptial agreement (or “prenup”) is not legally binding in England, and judges have extremely wide discretion when deciding how assets should be divided upon divorce.
Although increasingly rare, English courts can grant a type of financial award dubbed a “meal ticket for life” by critics. Compared to England, financial awards made in other jurisdictions in Europe and elsewhere in the world are generally much more limited, and if there are maintenance payments, there would be a time limit. According to the Financial Times:
In cases where there is not enough money for a one-off divorce settlement payment, courts have the option to award ongoing maintenance payments as well as lump sum awards. Judges have often awarded so-called joint lives maintenance to the financially weaker spouse, which means they receive annual payments for the rest of their life.
English courts are unusual in awarding open-ended maintenance orders. In Scotland, which has a separate legal system, maintenance is only usually payable for three years following a divorce, after which it is assumed the spouse will get a job and become self supporting. In France the maintenance period lasts eight years and in Norway and Greece it is usually three years.
But that may be changing soon in England.
The shift comes amid moves to reform the Matrimonial Causes Act 1973 — which deals with financial provision in divorce settlements — to create greater legal certainty and reduce reliance on judicial discretion to make maintenance orders.
Baroness Deech, a cross-bencher in the House of Lords, is seeking urgent reform of the law and wants a financial cap to be placed on most open-ended maintenance payments. “The proposal to put a limit on maintenance reflects what is happening in Scotland and other jurisdictions,” she said.
Her Divorce (Financial Provision) Bill had its third reading in the House of Lords in December and has now passed to the Commons. It includes a provision that would limit maintenance payments to five years except in exceptional circumstances.
The Bill also allows for prenups (and postnups) to be binding rather than persuasive as they currently are in England. The time limit of maintenance and the legal recognition of prenups, taken together, seem to disadvantage the financially weaker party of a marriage, usually the wife.
From another perspective, it leaves less discretion to judges and more certainty to the outcome. There may be improved “efficiency” in the event of a divorce, saving the couples time and money in fighting a lengthy emotional legal battle. Hopefully, this would make a divorce a little less painful.
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