The Hilton at the Ageas Bowl was the venue for this year’s seminar, presented by the Family Law Department at Paris Smith.
This prestigious event, a regular feature in the Department’s calendar of events, attracted family lawyers and other professionals from around the region, from Bournemouth to Basingstoke. The theme of the seminar this year – always hotly topical – was joint lives maintenance orders: have they been knocked for six? We were delighted to welcome Nigel Dyer QC and Lily Mottahedan, both of 1 Hare Court, as our speakers.
The venue itself was delightful – a brand new hotel adjacent to the Ageas Bowl test cricket ground and overlooking the golf course. The facilities and service offered by the hotel were exemplary, from the spacious and acoustically marvellous function room, where the seminar took place, to the open air roof top bar where our guests were treated to a wide range of gourmet barbecue delights and drinks.
Head of Department, Frank Prior, welcomed guests and introduced the speakers. With reference to the late great Bob Hope and his one-liner about maintenance (or “alimony”), he recalled that when two people get married, they think it’s forever, but only one of them ends up paying for it for life. And that is the kind of assumption that is currently under review, it would seem, by certain members of the judiciary.
Nigel took us through the “old” cases; in particular the seminal case of MacFarlane, in which the most senior judges in the land were quite clear that notwithstanding the statutory requirement to consider whether a clean break is possible, a joint lives maintenance order is appropriate where there is no certainty that this can be achieved without undue hardship. The concept of compensation was also explicitly introduced: the idea of awarding an amount of maintenance which exceeds (perhaps significantly exceeds) the payee’s needs on the basis that she gave up her promising career in order to look after their children, thus compromising forever her own earning capacity whilst at the same time enhancing the payer’s ability to concentrate on building his own career and future earning capacity.
Lily concentrated on the newer cases, more often than not decided by Mr Justice Mostyn, in which he appears to drive a coach and horses through the decisions made in earlier, higher courts. The emphasis in these cases – including SA v PA (2014), SS v NS (2014) and Wright v Wright (2014) – is on the payee (in these cases the wife) to demonstrate why a term order should not be made, or why it should be extended, rather than on the payer being required to demonstrate how it is that the wife will be able to achieve her independence. A degree of hardship on the part of the wife is acceptable.
As for compensation, Mr Justice Mostyn is not keen, not keen at all. He said that, save in exceptional circumstances, maintenance should be confined to the payee’s needs, and that compensation should be considered only in the “most” exceptional circumstances.
Whilst there will always be evidential difficulties in terms of quantifying the “loss” suffered by the wife in these cases (it will almost always be the wife who is able to bear children and who will almost always be the one to compromise her career in favour of the family), such difficulties are pretty nominal when compared to other matters with which the judiciary are forced to grapple on a daily basis. As Nigel pointed out, professional couples are far more prevalent these days than they were even when MacFarlane was decided in 2006, and accordingly “professional divorces” are or will be ever more prevalent. Wives who have compromised their careers and earning capacities will be far from exceptional and, given that they are likely to continue to feel the impact of those compromises for the rest of their lives, they will almost certainly be seeking compensation from high earning husbands.
It is yet to be seen how far-reacing Mr Justice Mostyn’s recent decisions will be. Short, snappy, easily readable, they are likely to be persuasive in courts of first instance up and down the country. But, the last time I looked, we were still bound by the principle of stare decisis, and therefore husbands should not be lulled into a false sense of security by these decisions (although Nigel suggested that we keep one drawer of blue (Mostyn) decision, and one drawer of pink (Court of Appeal and Supreme Court) decisions, depending on who we are acting for).
As usual, nothing can replace expert knowledge and advice from an experienced family lawyer, who will guide clients through the conflicting minefield of different decisions and use their powers of persuasion to ensure the best results, regardless of whether we are acting for the husband or the wife.