This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

Maintenance payments: why the financial reality matters
Stephanie Morris
17 November 2015

Maintenance payments: why the financial reality matters

Terminating the financial relationship between a divorced couple is an obvious and necessary step to emotional and practical independence for the individuals concerned. In reality, however, this is difficult to achieve. It is often the case that, for a variety of reasons, one party simply cannot meet their living costs post-divorce without receiving income from the financially stronger party.

Until recently, the English Courts have been notoriously generous when determining maintenance payments. Some argue that the patriarchal attitude prevalent in society and within the Courts can be seen as creating an unhealthy expectation of dependency for women. The Courts must balance this argument with the financial realities when considering the question of a wife/mother's ability to fund her own living following a divorce, and consequently when determining the maintenance payments she should receive. Most notably, government cuts, on-going inequality in the workplace and the practical issue of childcare are all contributing factors in what can be far from a clear cut calculation.

Government cuts

The recent debate surrounding tax credits demonstrates that the government's budget has a direct impact on a family's finances. In October, plans to cut tax credits were blocked by the House of Lords, which voted to delay them. Many argued that these changes, along with other cuts to welfare spending, will leave families significantly worse off. At a time when the current government is looking to make such cuts, it is more important than ever that the budget and its impact on state benefits are taken into consideration by the Court when considering the matter of a wife/mother's maintenance claim. 

The issue of inequality

Women now make up at least 25% of all FTSE 100 company boards. Reaching this target, set by Lord Davies following his review of Women on Boards in 2011, represents significant progress; however there is still a way to go. Whilst there are over 45% of women in the workforce, just 34% of those are in senior positions.

Further to this, of over 1,100 current FTSE 100 Board positions, only 24 women are executive directors – those that are actually involved at the most senior level in the day to day running of a business. The stats for FTSE 250 companies are worse. When considering a wife's ability to get back on her feet and become self-sufficient after an imposed term, the Court cannot discount the male dominance of the most senior positions in the workplace.

It remains to be seen whether David Cameron's plans to expose the gender pay gap will make an impact and, if so, in what time frame. For now, Courts must ensure they compensate for the inequality that women currently grapple with.  

Compounding this issue is the fact that many women take a career break in order to concentrate on motherhood and the family. Studies on the effect of career breaks show that even a few years after, it has a considerable impact on lifetime earnings and pension rights.  As Lord Hope stated in Miller v Miller "the career break…comes at a price which, in most cases, is irrecoverable." This is not an issue that most fathers will face.


The significant cost of childcare in the UK has become a barrier to work for many women. A survey by the Daycare Trust found that a full time nursery place in England for a child aged under two costs an average of £193 a week. Prices in London and the South-East are far higher. State-funded childcare in the UK only starts when the child is age three - or two for lower income families - and is limited to a mere 15 hours per week.

This, coupled with the cuts referred to above, has reportedly caused one quarter of low paid parents to give up their jobs. Even well paid professional women, who use nannies because they do not finish work until after nurseries shut, complain that after paying for childcare, tax and national insurance contributions, they see little of their own net earnings. Often the cost or inconvenience of childcare outweighs the benefits of women returning to work.

Positively, David Cameron is prioritising affordable childcare in the current government's plan. He is legislating for 30 hours of free childcare for all three and four years olds, doubling the existing allowance.  He is also seeking to make childcare tax free which could be worth up to £2,000 per year for every child. Whilst this is unlikely to solve the problem entirely, it is a step in the right direction. In the meantime, the current situation leaves many divorced mothers, returning to work in order to try and become financially independent from their former husband, in the lurch.

The message

Think tank, The Resolution Foundation, calculates that a million women are "missing" from the UK workforce due to a lack of funding for childcare, unbalanced parental leave and the way in which tax credits and allowances do not sufficiently encourage women to return to work. 

With the current financial reality against them, women are reliant on the Court to understand the nuances of their individual circumstances and to allocate maintenance on a case by case basis. Because, with all these variables, one thing is for sure: there simply cannot be a "one rule fits all" approach.