Maintenance and property in divorce

Published: Monday | December 30, 2013 Comments 0

Property and maintenance issues feature prominently in most divorce proceedings. Many claims are settled, but still many others are tried at court.

In a Supreme Court judgement delivered in the case of Stewart v Stewart, the judge cited the following passage from the case of White v White [2000] UKHL 54:

Divorce creates many problems. One question always arises. It concerns how the property of the husband and wife should be divided and whether one of them should continue to support the other. Stated in the most general terms, the answer is obvious. Everyone would accept that the outcome on these matters, whether by agreement or court order, should be fair. More realistically, the outcome ought to be as fair as is possible in all the circumstances. But everyone's life is different. Features which are important when assessing fairness differ in each case. And, sometimes, different minds can reach different conclusions on what fairness requires. Then fairness, like beauty, lies in the eye of the beholder.

Although fairness is such an imprecise concept, it is the principle that guides the court in matrimonial proceedings. An extract from the judgement in Miller v Miller [2006] UKHL 24, which was cited by the learned judge in Stewart puts the issue in its proper context:

Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately, it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising, therefore, that in the present context there can be different views on the requirements of fairness in any particular case.

This underscores the fact that matrimonial proceedings are difficult to determine; especially as each case is left to be decided on its own facts.

Stewart's case commenced as an action for division of matrimonial property, but morphed into a claim for spousal and child maintenance. Interestingly, the couple had separated in 2005 and obtained a Decree Absolute in 2009. No maintenance claim was made until 2012, almost three years after the marriage was dissolved.

The Defendant contended that the maintenance claim was out of time, but the judge found that there was no prescribed limitation period for the filing of a maintenance claim between a married couple. The only limitation period set out in the Maintenance Act relates to common-law couples, who are obliged to make maintenance claims within 12 months after the cessation of cohabitation.

After reviewing the statutes, the case law and the evidence, the judge stated that his decision was influenced by the fact that "the responsibility for maintenance (should) be borne equally to the extent possible, having regard to the means and other relevant factors of the parties; and having regard primarily to considerations of what is fair and just in all the circumstances ..." The claimant was then ordered to make periodic maintenance payments and reimburse the defendant for arrears.

Importantly, given the fact that the claim was originally one for division of matrimonial property, the court ordered that the defendant and the child should be allowed to continue to live in the house until the child attains majority. Additionally, the court ordered that the property should not be sold until the child attains majority. To ensure that the maintenance payments were made, the court also charged the claimant's interest in the property with the maintenance payments, and ordered that, "In the event of a sale of said property, the said amounts shall be deducted as a lump-sum from the claimant's share of the proceeds of sale of the property and paid to the defendant."

I will review the judgment in greater detail next week, but for those who read the judgement, the learned judge's approach to the matter should be encouraging to the many persons who forego making maintenance applications because they fear that the effort will be futile.

I wish to take this opportunity to thank all of the faithful readers for their support, encouragement and questions throughout the year, and wish you good health, prosperity and peace in the New Year.

Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to or on twitter@lawsofeve.

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