Maintenance Order in UK Law

There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children. The law now encourages spouses to avoid bitterness after family break-down and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down.

However this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the Court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own covenant preclude herself from invoking the jurisdiction of the Court or preclude the Court from the exercise of that jurisdiction.

In my opinion the statutory powers of the Court to which I have referred were granted partly in the public interest to provide a substitute for this husband's duty of maintenance and to prevent the wife from being thrown upon the public for support. If this be true the powers of the Court in this respect cannot be restricted by the private agreement of the parties. The wife's right to future maintenance is a matter of public concern which she cannot barter away.

These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.

"Causes of action" in the section means, I think, rights which can be enforced - or liabilities which can beredressed - by legal proceedings in the Queen's Courts, These new survive against the estate of the deceased person. They extend also to rights enforceable by proceedings in the Divorce court, provided that they really are rights and not mere hopes or contingencies. The only thing which takes a case out of the Act is the absence of an enforceable right at the time of death.

Second, on the exit from the marriage, the partnership endsin ordinary circumstances a wife has no right or expectation of continuing economic parity (“sharing”) unlessto the extent that consideration of her needs, or compensation for relationship-generated disadvantage so require.