On 11^th February 2015 the Court of Appeal handed down judgment in Wright v Wright [2015] EWCA Civ 201, a case which concerned the thorny issue of spousal periodical payments orders. Whilst the decision caught the attention of many tabloids and newspapers who used headlines such as “Judge tells ex-wife of millionaire horse surgeon: go to work” and “divorced wife told to get a job and stop living off her ex-husband” the judgment is in fact neither particularly sensational nor ground-breaking.

The Case

The Husband was an equine surgeon in Newmarket and at the time of the appeal was 59 years old. The Wife was 51 years old and had worked as a legal secretary and administrator before the marriage. They had been married for 11 years and at the time of the appeal they had two children aged 16 and 10 years old. The Husband was initially ordered by District Judge Cushing to pay £33,200 per annum to the Wife for their joint lives and £10,400 in respect of each of the children together with school fees. Additionally the couple were ordered to sell the Former Matrimonial Home worth £1.3 million with the Wife receiving a share which enabled her to acquire a mortgage free house worth £450,000 and stables.

The Husband made an application to vary the order on two grounds. Firstly that his financial circumstances had changed for the worse and secondly that District Judge Cushing had made it plain that the Wife would be expected to work within the following two years to make a contribution towards the household expenditure.

Her Honour Judge Roberts heard the application and after hearing evidence over two days ordered that the periodical payments to the Wife should be scaled down over six years when it would cease.

The Wife appealed this decision arguing that the judge had failed to pay adequate regard to the fact that the original order made by District Judge Cushing was a joint lives order.

Pitchford LJ sitting alone in the Court of Appeal at the permission hearing found that there was no prospect of the Wife undermining the judge’s order drawing particular attention to the reasoning used by DJ Cushing in her judgment

“There is a general expectation in these courts that once a child is in year two, most mothers can consider part time work consistent with their obligation to their children. By September 2009/2010 the wife should be able to work. She will be 46 or 47 years old. I do not anticipate her having a significant earning capacity nor would it be reasonable to expect her to muck out stables for the minimum wage. However she should make some financial contribution”

He also placed specific emphasis on DJ Cushing’s expectation of the Wife that “she will use her best endeavours to develop an earning capacity in 2 to 3 years time to the extent that it is compatible with the children’s care. It is no good to refer to other mothers who do not work.”

Pitchford LJ noted that HHJ Cushing had found that the Wife was on strict notice that she would be expected to make a contribution towards her own maintenance but had done nothing since the final order to look for work or to retrain or to prepare herself for work. He found that HHJ Cushing in making her decision was acting upon figures that had been presented to her and evidence which she had heard over two days. She had calculated that during the following two years the Wife would be able to meet her reasonable costs without working, although she found it was imperative that she take immediate action to contribute financially to her own future. In his view the judge had given sufficient reasons for departing from the professional view of Judge Cushing and her decision was unimpeachable. He commented that it was open to the Wife to make a further application if despite her best efforts she failed to produce a significant financial contribution both for the present and for the future but “the onus would henceforth be on her”

Comment

All practitioners are well aware of the statutory steer towards a clean break created by sections 25A(1) and (2) of the Matrimonial Causes Act 1973 which stipulate that spousal maintenance should be terminated as soon as is just and reasonable and a term should be considered by the court unless the payee would be unable to adjust without undue hardship to the ending of the payments. In the case of SS v NS [2014] EWHC 4183 (Fam) Mostyn J made clear that in a case where the choice between an extendable term and a joint lives order is finely balanced this statutory steer should militate in favour of the former. The decision in Wright v Wright is a clear example of the court adopting this approach and follows the growing trend of cases in which the court looks to implement a clean break and achieve financial independence. The outcome in this case is perhaps hardly surprising in circumstances where the Wife had been given a clear warning by the court as to what was expected of her in the future but was found to have flagrantly ignored it and her reasonable needs could be met on a scaled term order. This provides a salutary lesson to practitioners to ensure that they advise their payee clients that they cannot rest on their laurels  and must continue to take steps to maximise their earning capacity even after the final order is made.