Is the stay-home partner treated fairly in divorce?
February 2019 | Martin Fuller
When resolving financial matters between a husband and wife who are divorcing, the court has the power to order one party to pay the other periodical payments. Periodical payments are an amount paid every month to help the stay-home partner meet their monthly outgoings.
The court must consider whether or not fairness can be achieved without making a periodical payments order. This is known as a ‘clean break’ order. For instance the court may award the stay-home partner a larger share of the capital assets on the basis that this severs the ongoing financial dependency, and a clean break order is achieved.
However, it is not always possible to achieve a clean break order. Indeed, studies have shown that approximately 1.8 million families in England are organised on the basis that the father works full-time, and the mother works part-time. So, in this scenario specifically, many women suffer an economic penalty, as a result of being the primary carer for the children. They experience reduced earning capacity, fewer work place skills, and are unable to make comparable savings and pension contributions etc. So on divorce the father who works full-time is in a better position to recover from the financial impact of separation. The mother, as primary carer of the children, is less fortunate.
The court can make adjustments to improve the financial position of the part-time working mother. These can include the making of a periodical payments order, requiring the full-time working father to pay a monthly amount to the part-time mother and carer of the children. This type of order is not always satisfactory but is better than nothing and is capable of later review by the courts. Overall, studies show that women are being expected to pick up the burden of childcare, and suffer the consequences of working work part-time to care for the children. This needs to be addressed.
Baroness Deech’s Divorce (Finance Provision) Bill proposes to cap the courts power by limiting the term of a periodical payments order to no more than 5 years from the date of divorce, unless the party in receipt of the periodical payment order is likely to suffer serious financial hardship as a result. If passed into law, this may leave the economic burden with the parent undertaking the role of primary carer for the children, whilst the other parent works full-time, accumulating savings, pensions, salary increases, work place skills, promotion etc.
Baroness Deech believes her bill will reflect recent changes in society because she believes “that as long as judges accept the demands of some women for lifetime maintenance payments, male employers will never take women as seriously in the workplace as they should.”
It is unclear what the employer needs to know about a court order between two separating parties. Whilst there may be an argument for the reduction of a lifetime periodical payments order, proposing to limit these to 5 years is almost certainly a step too far. In many cases there are small children to make provision for and unknown financial commitments moving forward, which could not be seen as likely to cause ‘serious financial hardship’ but nevertheless do not ensure financial equality between the parents. One would hope that society would expect parents to share the responsibility and costs of caring for their children proportionately, rather than placing the substantive economic burden on the parent with the lower income. It is hoped that the law and the courts would reflect this.
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