THE MAINTENANCE QUAGMIRE

Publication Date01 Nov 1970
AuthorStephen Cretney
DOIhttp://doi.org/10.1111/j.1468-2230.1970.tb01303.x
THE
MAINTENANCE
QUAGMIRE
THE first part of this paper deals with some of the problems affecting
support rights and obligations between members of the family
group; in the second, part'the interest of the community in enforcing
and underwriting these obligations is briefly considered. Through-
out, the law is seen to be confused and inconsistent;
it
is marked,
above all, by
a
failure
to
take systematic decisions
on
the social
policies which it seeks to uphold.
A.
SUPPORT
OBLIGATIONS
WITHIN
THE
FAMILY
I.
Husband and
Wife
1.
Reform
intro-
duces
a
number of reforms, mostly rationalisations and simplifica-
tions of the existing law. There is much
redrafting
and
minor
modification
(e.g.
of the court's powers to set aside dispositions
intended to defeat claims to maintenance,2 and of the provisions
dealing with the variation of maintenance agreements
3,
but the
major and welcome reform is to introduce a unified code of ancillary
relief.4
In
addition
to
maintenance pending suit, the court can in
all proceedings order
"
financial provision
"
(in effect, mainten-
ance-a term which was rejected as suggesting some inferiority
on
the part of the recipient),0 which may be secured.
In
proceed-
ings for nullity, judicial separation
or
divorce, the
court
may order
a lump sum to
be
paid,
a
transfer of property, a sebtlement for the
benefit of the spouse and the children of the family, and a variation
of any ante-nuptial
or
post-nuptial settlement (including
a
settle-
ment made by will
or
codicil). All orders for secured provision can
be made for the lifetime
of
the payee (although unsecured provision
The Matrimonial Proceedings and Property Act
1970
1
hrgely implementing the recommendahions
of
Law Com.
No.
25
:
Report on
Financial Provision
in
Matrimonial Prooeedings;
(see
alsa
the Law Commis-
sion's
Published' Working
Paper
No.
9
(1967)
which deals with some
aspects
of
the
problem in more debil than the
report.
For Parlirtmenta
Debates
aee
H.L.Deb., Vol.
305,
COLS.
471, 494,
854;
Vol.
306,
001.
263;
gC.Deb., Vol.
794,
col.
1558;
Standing Committee
J,
April
29, 1970,
May
6
and
13, 1970;
Vol.
801,
col.
1943.
Debake
on
the
Bill,s in the
House
of
Commons ww much
shortened
by
the
imminence
of
the
dimfuieion:
74
hours were
qenk
in Sltanding
Commitltee diacusairg the
fir&
five
daoms;
after
the announcement
of
the
dissolution the corninittee and other stage@
of
the
Bill were completed in less
than
!2+
hours.
This
paper ie solely concerned with
maintenance;
for
the
effeots
of
the Act
on
matrimonial property, see
0.
Kahn-Freund. p.
601
(supra).
As
a
result many important amendments were
not
debated.
2
8.
16.
3
68.
13-15.
4
SB.
1-5,
7-8.
5
i.e.
including proceedings
for
wilful neglect
It0
mainkain, under
8.
6.
6
See
Law
Com.
25,
3.
4,
note
12.
662
Nov.
1970
THE
MAINTENANCE QUAGMIRE
663
will still terminate
on
the payer’s death: the spouse will then be
left to take proceedings for provision out of the deceased’s estate
‘).
The Act abolishes the action for restitution of conjugal rights (now
wtiose in view of the unlimited powers to order secured provision
and to order a wife to settle property of any kind) and the wife’s
agency of necessity.
Two major changes of principle are made by the Act:
(i)
The move to greater equality between husband and wife.
The
right to apply for financial relief is now conferred equally
on
hus-
band and wife. The only exception to the logical symmetry is that
if
the application is solely
on
the grounds of neglect to maintain a
husband applicant, he must establish that his earning capacity has
been impaired through age, illness
or
disability of mind
or
body,
so
that
it
is reasonable to expect his wife to maintain him. This is
because the pattern of the provision in the existing Matrimonial
Proceedings (Magistrates’ Courts) Act
1960
has been adopted, rather
than recasting that section, which would have involved a complete
reformulation of mutual support obligations.
(ii)
Maintenance ceases on remarriage.
In
the early days of the
Divorce Court, orders in favour of a wife were normally made
durn
sola et casta.
This practice fell into desuetude,”
no
doubt partly
because the court’s power to vary maintenance awards would be
used to terminate a maintenance order if remarriage gave the wife
adequate support. The Law Commission’s tentative proposal that
all periodical maintenance payments should cease
on
remarriage
received
‘‘
almost unanimous support, which includes that
of
the
various women’s organisations that favoured us with their com-
ments,” and the
Ad
so
provides. It thus adopts the philosophy
that a woman should only be entitled to
the
standard
of
living
enjoyed by her in marriage
so
long as she does
not
acquire another
matrimonial source of support. This principle could place a
divorced woman in a position where she would lose substantially by
contracting a marriage (as distinct from an illicit union) with a man
who was poorer than her .first husband. The new principle may
be
acceptable in the case
of
a childless marriage, but
it
could cause
severe strain
if
the mother has custody of a child who is still to
be
maintained in a manner suitable to the financial position
of
the fist
marriage.12 Even
if
powers are infrequently used it is desirable to
have them available for use
on
the occasions when they are needed.
In
addition to this objection, the new principle seems inconsistent
Inheritance (Family Provision) Act
1938
as
amended
if
the mamsge still
subsisted
at
death; Matrimonial
Caums
Act 1965,
8.
26
if
it had
been
terminated.
8
s.
20.
implementing Law Cm.
No.
23,
Re~pmt
on
Restitution
of
Conjuga!
Rights.
Law Com.
25,
para. 19.
lo
Cf.
Fisher
v.
Fisher
(1861)
2
Sw.
&
Tr. 410;
Lister
v.
Lister
(1889)
15
P.D.
4.
11
See
Working
Paper
No.
9,
parsts.
40,
69:
Law Com.
25,
para.
14.
l2
See
e.g.
O’R~gan
(fonn~dy
DriscoZI)
v.
DriscoZZ
(1969)
13
F.L.R.
417

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