NOTES OF CASES
| Published date | 01 July 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01424.x |
| Date | 01 July 1975 |
NOTES
OF
CASES
MAINTENANCE, DIVORCE,
AND
SOCIAL
SECURITY
FOR
some considerable time, the matrimonial courts have been
faced in maintenance and divorce proceedings with cases where the
normal rules for resolving the financial interests of the parties and
their dependants have been seen to be manifestly inappropriate.
The rules provide for an equitable distribution of available money
and property on family breakdown, but in many situations, the
parties just do not possess enough, independent of the present
system of social security, to make any meaningful contribution to
a
financial settlement. There comes
a
time when the principles of
matrimonial settlement have
to
give way to the harsh facts of
economic reality. However, English law at present does not provide
adequate machinery for this.
“
[Tlhere is something radically un-
satisfactory in
a
state of law (by which
I
mean not only the matri-
monial law, but
also
the law of social security) which allows two
authorities, the courts and the commission, when dealing with pre-
cisely the same people in the identical human predicament, to make
different determinations, each acting in ignorance of what the other
is
doing and applying rules which only tangentially meet each
other.” These words came from one of the few English judges
who seemed to know of the dual system, and to care about it.
As
befitted the Chairman
of
the Report
of
the Committee
on
One
Parent Families,z Finer
J.,
may well have done more in
a
series of
recent decisions to highlight and to resolve the difficulties presented
by the dual systcm than progressive Parliamentarians and Law
Comm i~sioners.~
As
the Finer Committee points out, few men, especially those
involved in proceedings before the magistrate~,~ can afford to sup-
port two families, even at subsistence level.
In
the light of decisions
like
Roberts
v.
Roberf~,~
the Finer Committee offered the follow-
ing summary of the law relating to the division of a man’s resources
between either his former wife and wife, or between his wife and
the mistress with whom he was now living
E:
“(I)
neither the husband nor his mistress can claim to be
in a better position than they would have been had he married
her upon divorce from his first wife;
(2)
the general rule
is
that one spouse takes the other subject
1
Willinms
v.
Willinnis
[1974]
3
All
E.R. 377, 381-382.
2
Cmnd. 5629, 1974.
3
Regrettably, the Law Commission Working Paper
No.
53
on
Matrimonial
Pro-
ceedings in the Magistrates’ Courts confined itself almost exclusively
to
suggesting
narrow level reforms
to
the law of maintenance without giving adequate attention
to the importance of the system of social security,
4
Finer Report, p. 92
er
seq.
5
[1970]
P.
1.
6
Finer Report,
p.
83.
449
450
THE
MODERN
LAW
REVIEW
[Vol.
38
to that other’s obligation to support the wife or child of the
dissolved marriage,
so
that a mistress could not be better placed;
(3)
nevertheless, when the court is dealing with people of
smalI means, it has to take this
‘
into account
’
not
by making
a mathematical deduction for the expenses of the mistress’s
keep, but by giving some weight to the realities:
It
is
of
little use ordering
a
man to pay what
is
beyond
his
capacity, or
on
which he will
in
every probability default.”
Thus, if
a
man can afford to support both families, even at sub-
sistence level, he must do
so.
He
is
not entitled
to
claim that any
maintenance that he pays to his wife will merely reduce any social
security payments made to her by the Supplementary Benefits Com-
mission without leaving her any better off.
To
permit this argument
would be to allow a husband to transfer to the taxpayer a burden
that is rightly his.’ Where, however, a man cannot support both
families at subsistence level, the court takes
the
realistic view that
the loss will have to fall
on
the wife (or former wife) and the court
will take notice
of
the fact that any hardship
to
the wife,
or
former
wife, will be mitigated by the social security system.8 The case of
Billington
v.
Billington
suggests that, for the purpose of fixing the
“
protected earnings rate
”
in attachment of earnings proceedings,
there is an unofficial link between the
“
protected earnings rate
”
and the supplementary benefits that a man, and the family with
whom he is
now
living, would receive were they to qualify for
supplementary benefits. One assumes that similar reasoning would
apply when it became necessary to establish what would be subsis-
tence level
for
a
husband and the family with whom he is now
living, in connexion with maintenance proceedings.
However, at this point it appears that “subsistence level
”
may
mean one thing to the courts and another thing to the Supple-
mentary Benefits Commission. Where
a
private arrangement is
made between the S.B.C. and
a
husband about the appropriateness
of his offer to support his wife, the S.B.C. have established guide-
lines to help their officers to decide whether a husband’s offer
of
maintenance is reasonable.
This
could arise either where the hus-
band, the wife and the S.B.C. want to arrange maintenance
so
as
to avoid the need for the wife to bring proceedings under the
Matrimonial Proceedings (Magistrates’ Courts) Act
1960,
or to
avoid the need for the S.B.C. to take proceedings against her
husband as
a
“
liable relative
”
under the Ministry
of
Social Security
Act
1966.
Under the formula
“
the requirements of the liable rela-
tive are normally taken to be the supplementary benefit scde rates
for himself and any dependants with whom he
is
living, plus an
allowance to meet the rent in full
. . .
plus the sum of
€5,
or
a
quarter of his net earnings (his take-home pay after deduction of
7
Ashley
v.
Ashley
[1968]
P.
582.
8
Barnes
v.
Barnes
(19721
1
W.L.R.
1381.
9
[19741
1
All
E.R.
546.
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