There are still people who believe that if they just maintain separate bank accounts, and keep their house in their sole name – their spouse will not be able to claim a share of their assets. They are wrong. There are also people who think that their business assets and pensions are untouchable on divorce. They are wrong too. Divorce can bring nasty surprises for anyone, but it is often the prospect of paying spousal maintenance that feels the most unfair to breadwinners.
When you divorce, a court has the power to order one spouse to pay an income to the other. This tends to happen where one spouse has a significantly higher income than the other, but that is not always the case. Spousal maintenance payments may be ordered whether or not you have children and they can continue, in theory, until one of you dies. They are generally index linked and can be subject to an upward (or downward) review if your circumstances change. Payments can even be secured on property. In Jersey, even if your former spouse cohabits or remarries that may not automatically bring an end to spousal maintenance payments. The purpose of spousal maintenance is to enable former spouses to meet their reasonable needs, and in a high earning family ‘reasonable needs’ may mean a very nice standard of living indeed. It is scary stuff.
Most people – judges included – see the benefit of achieving a clean break. That is a settlement which draws a line under the financial relationship between former spouses with no ongoing spousal maintenance payments made by either party. To make this possible the court may award more of the assets to the financially weaker party and/or order the other party to pay a cash lump sum to them. The idea is that this additional injection of capital reduces the income needs of the receiving spouse and it may then be possible for them to make ends meet without additional help. Perhaps most importantly, it provides peace of mind and allows people to get on with their lives. Unfortunately, there isn’t always enough money to make this possible.
Is spousal maintenance fair? Homemakers who are caring for young children may not be able to earn enough to have a reasonable standard of living, even if they keep more of the available capital. Even where children are older, spouses who have sacrificed time from their careers to raise a family are likely to be at a significant handicap on the job market. In these days of equality, parents raising children are expected to make their way back into work once their children are older and it is now more common to have spousal maintenance paid for a fixed term so that the person receiving payments can ease their way back into independent living without undue hardship. But, with a high cost of living and very expensive housing costs spousal maintenance is sometimes unavoidable in Jersey.
Advocate Claire Davies
This article first appeared in Connect September 2019