A Direct Right to Seek Maintenance

As has been well-documented, the nineteenth-century reforms to the position of married women basically adopted a twin-track strategy. This was to enhance the economic independence of women through reforms to their legal capacity to own property and to enter into contracts on the one hand, and to provide more effective means to ensure their protection from abusive husbands on the other. There is a considerable literature on the achievement of the property reforms, and these are not discussed here.14

i. Maintenance as a Remedy for Matrimonial Fault

The protective approach initially took the form of creating a legal remedy—

the ‘separation order’—that would relieve a wife of her duty of cohabitation

Maintenance During Marriage 101

15 See Shanley (n 14) 167.

16 Matrimonial Causes Act 1878, s 4.

17 The High Court was eventually given jurisdiction to make maintenance orders by the Law Reform (Miscellaneous Provisions) Act 1949, s 5.

18 Summary Jurisdiction (Married Women) Act 1895, s 4.

19 Matrimonial Causes Act 1937, s 11. A husband could obtain a separation order, but not maintenance, on proof of the wife’s adultery.

with her husband because of his violence rather than his financial neglect.

It was inspired by the campaign led by Frances Power Cobbe, influenced by the liberal arguments of JS Mill and Harriet Taylor, for protection of (mainly) working-class wives from domestic abuse.15 But it was recognised that the courts required an accompanying power to order the husband to pay maintenance to the wife, for the same reason that the old divorce a mensa et thoro had required the payment of alimony. Even with the achievement of some degree of equality with husbands in relation to the holding of property, most wives were still financially dependent upon them for support of themselves or their children, and could not contemplate separation unless their economic position could be safeguarded. Nor could all such women afford to take proceedings in the costly Divorce Court in London. Jurisdiction was therefore given to the magistrates, when dealing with a husband’s violence against the wife as a criminal matter, to provide civil remedies in the form of the separation order and consequential maintenance.16 Henceforward, the question of how the spousal duty to maintain during the marriage was to be enforced was primarily17 dealt with through extensions to the powers of the magistrates and on the basis of a finding of matrimonial fault on the part of the respondent spouse, which justified the parties’ living apart.

Rather than focusing on the husband’s abuse, a wife was subsequently enabled to seek an order based on his ‘wilful neglect to provide reasonable maintenance for her or her infant children whom he is legally liable to maintain’, which had ‘caused her to leave and live separately and apart from him’.18 However, in line with the common law, she lost her right to claim maintenance if she committed adultery, and her right was suspended if she was in desertion. This meant that she would still have to have ‘just cause’

for leaving the husband in the first place, so that (unless he was in desertion, and until adultery was added to the list of grounds for an order in 193719) her ability to obtain maintenance still hinged on proof of his abuse.

The focus on fault reflected the approach to matrimonial conduct taken by the divorce jurisdiction, but even though the ground for divorce was equalised for husbands and wives in 1923, it was not until the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 was enacted that a husband was enabled to seek a maintenance order from the wife during the marriage, and then only where he was incapacitated by age, illness or disability.

20 O Stone, ‘The Matrimonial Proceedings (Magistrates’ Courts Act), 1960’ (1961) 24 MLR 144, 145.

21 But regard was to be had to both parties’ ‘means’, which the Government considered encompassed earning capacity: HL Deb, 4 February 1960, vol 220, cols 956–57.

22 ibid, cols 954–55.

23 Law Commission, Matrimonial Proceedings in Magistrates’ Courts (WP No 53, 1973).

The paper was produced by a Working Party including representatives of the Home Office, the department responsible for the magistrates’ courts.

24 Law Commission, WP No 53 (1973) para 34.

The reform was commended by Olive Stone as a ‘shift from an assumption of dependence to an assumption of responsibility [which] is a landmark in the progress of the married woman towards full legal personality’.20 The debates on the 1960 Bill in Parliament were certainly marked by a clear shift in the attitude towards the position of the claimant wife, notwithstanding the dominance at that time of the male breadwinner/housewife model of marriage. Several attempts were unsuccessfully21 made to require express reference to be made to a wife’s earning capacity as a relevant factor in determining whether, and if so how far, a husband should be required to maintain her. Lord Denning expressed the sentiment clearly:

I have had cases before me in which the wife, maybe a young wife, childless, separates from her husband, goes back to her mother, gets an order for maintenance … and then is content to draw a pension for life from him, not troubling to go out to work herself.22

ii. The Modern Maintenance Jurisdiction

The continuing focus on fault as a basis for awarding maintenance could not stand with the abolition of the matrimonial offence as the ground for divorce and its replacement by the concept of ‘irretrievable breakdown’

in 1969. The new era after divorce reform was firmly based on a view of marriage as a relationship formed by willing commitment and founded on emotional self-fulfilment. If either spouse wished to end the union, it was accepted that, subject to safeguarding the interests of the other party and any children, he or she should—eventually—be allowed to do so. The Law Commission accordingly conducted a review23 of the magistrates’ and High Court jurisdiction to award maintenance following the divorce reforms, which had come into force in 1971. It noted that the reformed law on financial remedies on divorce

makes explicit that the obligation to maintain arises from the fact that the parties have been married and that the obligation is mutual. If this is the policy underly- ing the matrimonial maintenance law on dissolution, when the obligations of marriage have ceased, the same principle should certainly apply while the marriage still exists.24

Maintenance During Marriage 103

25 The other main changes were to provide that the duty to maintain should be fully recipro- cal, with both spouses liable on the same grounds; and to remove adultery as a bar to support.

26 Matrimonial Causes Act 1973, s 27, was amended accordingly.

27 Smart (n 2) ch 9.

28 £2 per week, imposed by the Married Women (Maintenance in Case of Desertion) Act 1886, s 1.

29 Cretney (n 11) 450.

30 Cobb v Cobb [1900] P 294.

The legislation that resulted from the Law Commission’s deliberations sought to bring the maintenance jurisdiction more closely into line with the divorce reforms.25 Section 1(1) of the Domestic Proceedings and Magistrates’ Courts Act 1978 provides that an order may be made on the grounds that the respondent has failed to provide reasonable maintenance for the spouse;26 has behaved in such a way that the applicant cannot rea- sonably be expected to live with the respondent; or has deserted the applicant. It can immediately be seen that while the first ground is neutral, no longer requiring a finding of ‘wilful’ neglect or refusal to maintain, the other two are still based on matrimonial fault. The legislation thus faithfully replicated the same fudging of rationales that was present in the reformed divorce law, where ‘irretrievable breakdown’ was provable by evidence of fault as well as separation.

The courts, applying the new law in an era when social security had now been accepted as the main source of support for those unable to earn and many earners had little cash to spare for maintenance, faced difficulty in balancing the competing interests of the individual wishing to move on from a relationship, of the family left behind and of the state. For example, Carol Smart interviewed magistrates in the early 1980s who simultaneously favoured the idea of reducing husbands’ maintenance liabilities because wives should not be given ‘a meal ticket for life’, rejected the idea of improv- ing state benefits for lone parents because that would mean increasing the burden on taxpayers in a time of economic recession, and were concerned that both men and women should continue to fulfil the traditional model of breadwinner/housewife marriage.27

iii. Quantum

Cretney notes that the facts that when the jurisdiction was first created in the nineteenth century the magistrates were catering for the poorer sections of society and were faced with a maximum cap28 on what they could order, meant that there was little discussion of the principles upon which they were to exercise their discretion: ‘Overwhelmingly, the question was simply how much could, somehow, be extracted from a husband.’29 Some magistrates may have given little thought to what would be an appropriate sum. In Cobb v Cobb,30 for example, decided in 1900, a 66-year-old railway porter

31 Ward v Ward [1947] 2 All ER 713, 714. See, to similar effect, Kershaw v Kershaw [1966]

P 13.

32 [1966] P 13, 17. See too, Ashley v Ashley [1968] P 582: husband required to pay wife

£5 per week from his wages of £14 5s, even though this would simply be deducted from the wife’s social security benefits and she would be no better off. But realism was necessary.

In Fletcher v Fletcher [1985] Fam 92, it was accepted that the husband, dependent on sup- plementary benefit, had no ‘margin’ of income available to pay more than a notional sum of 5p per annum for the wife and their child.

33 D Bradley, ‘Matrimonial Proceedings in Magistrates’ Courts’ (1977) 40 MLR 450, 455.

earning 23 shillings per week was ordered to pay his wife £1 (20 shillings) per week in maintenance. It is a mystery how the justices expected him to survive on the remaining 3 shillings. He was twice imprisoned for failure to pay, and after the order was reduced to 12 shillings per week, he appealed (financed by railway passengers who got up a collection for him). Jeune P accepted his counsel’s argument that the magistrates should apply the one-third guideline used in judicial separation cases, and agreed to the husband’s offer to pay 8 shillings per week.

But the automatic application of the one-third rule of thumb might be too generous to either the husband or the wife. In the much later case of Ward v Ward,31 it was said to be ‘absurd to apply automatically to working-class people a standard which was applicable in the days when income tax was 1s. in the pound, a rent-roll might be £10,000 a year, and pin-money was

£2,000 or £3,000 a year’. The general principle of assessment in the modern era was set out by Simon P in Kershaw v Kershaw:32

In cohabitation a wife shares with her husband a standard of living appropriate to his income, or, if she is also earning, their joint incomes. If cohabitation is destroyed by the wrongful conduct of the husband, the wife’s maintenance should be so assessed that her standard of living does not suffer more than is inherent in the circumstances of separation … Although the standard of living of both parties … may have to be lower than it was before there was the breach of cohabitation, in general the wife should not be relegated to a lower standard of living than that which her husband enjoys.

The Ostensible Purpose of the Decree

The Effect of the Decree after 1884