FREE CHAPTER from ‘A Practical Guide to Spousal Maintenance’ by Liz Cowell



Contrary to what most people believe Henry VIII’s divorces from Catherine of Aragon and Anne of Cleves did not open a flood gate of divorce for the rest of society in this jurisdiction.

Indeed, it was only possible to obtain a divorce by way of a private Act of Parliament. For obvious reasons this was outside of the reach of all but the extremely rich.

When parties did separate it was possible for the “innocent” wife to apply to the Ecclesiastical Courts for maintenance which was called at that time “alimony”.

By the time that divorce through the civil courts was allowed by the Matrimonial Causes Act 1857 there was a body of case law upon the issue of maintenance built up by the ecclesiastical courts which required a husband to make a suitable (albeit moderate) provision for his former wife.

The Matrimonial Causes Act 1857 saw the introduction for the first time of ancillary relief by way of spousal maintenance on a discretionary basis. The court could however only order the husband to “secure” to the divorced wife such;

gross sum of money or such annual sum of money ……. As having regard to her fortune (if any) and to the ability of the husband and to the conduct of the party deemed reasonable”.

At the time, when a woman married her property became her husband’s and so very often the security needed to provide maintenance had originally come from the wife’s family. During the marriage the husband would have had complete control of her property. In exchange he had an ongoing responsibility to support her even after the dissolution of the marriage.

This changed with the first Married Women’s Property Act in 1870 which culminated in the Married Women’s Property Act of 1882. After which a married woman could retain her own property. Following those reforms, it is not surprising that the Court of Appeal began suggesting that their discretion to provide maintenance should be “unfettered” Lister -v- Lister [1889] 15PV4 (CA).

Following the Matrimonial Causes Act 1907 the court then gained the power to order a divorced husband to make unsecured weekly or monthly payments for his wife’s maintenance and support.

The One Third Rule

The method calculating a wife’s maintenance based on one third of the husband’s income had been used long before 1857 by the Ecclesiastical Courts. This was to provide for her lodging costs, clothing and other necessities when the couple were living separately. In cases where the wife had brought most of the capital into the marriage occasionally, she could get more than half of the available income from the secured capital. In Otway -v- Otway [1813] 2Phil 109 Mrs Otway had bought a significant capital sum into the marriage and the Judge awarded her £2,000.00 per annum (approximately £175,00.00 per annum in today’s figures) from a joint income of £5,500.00 per annum (approximately £440,000.00 per annum in today’s figures). As can be seen the figures are not dissimilar to what a spouse might get today albeit of course her capital remained Mr. Otway’s.

In the case of Sherwood -v- Sherwood [1928] at page 215 Lord Merridale refers to an expectation that the wife would be awarded one third of the husband’s income as being “axiomatic” this does not mean that a one third division was a binding rule (despite it being called one) rather it was a starting point or a guide to the court, see Stibbe -v- Stibbe [1931] P105.

Lord Denning extended this guide to the division of capital as well as the way we calculate maintenance in the case of Watchel -v- Watchel [1973] FAM72 stating:

a starting point of one third of the combined resources of the parties is as good and rational a starting point as any other”.

The one third calculation continued to be used after the introduction of the MCA 1973. As many wives by then were working and had an income of their own one third was calculated by adding the parties’ two incomes together and dividing by three. If the wife’s income was less than this figure maintenance would be ordered at the sum to make up the difference. For example if the husband was earning £4,500.00 per month and the wife was earning £1,500.00 per month the total would be £6,000.00 one third of which is £2,000.00 therefore the wife would receive £500.00 per month the net effect of this is to leave the husband with 100% more income than the wife.

Meeting an applicant’s reasonable requirement is another way of tackling the calculation of maintenance. In Louis -v- Louis LR I&P D 230 the wife was receiving £40.00 per annum permanent alimony from her husband’s income of £120.00 per annum. She applied to vary that sum upwards when his pay increased to £480.00 per annum. She did not get awarded one third of that sum as the court applied the reasonable requirement test finding that it was more expensive for the husband to live in India where he had been posted than in England and the wife was only awarded £190.00 per annum.

The application of a reasonable requirements approach to a maintenance award is often found in cases where the courts are reluctant to provide a wife with what was perceived as too great an income. That is, an income in excess of the amount she needed to support her usual needs and standard of living.

In the case of Kettlewell -v Kettlewell [1898] P138 the joint income was £20,000.00 per annum (around £1,275,000.00 in today’s money) the court awarded Mrs Kettlewell £3,000.00 per annum (equivalent to £225,000.00 per annum in today’s figures) Sir HG Jean P stating that although the ordinary rule would be to allow a wife one third of the joint income an award of that size “would clearly be too much”.

Following on from this decision there was a period where the courts felt bound not to award maintenance of more than £3,000.00 per annum until the Court of Appeal decided that there was no such binding rule in the case of Hulton -v- Hulton [1916] P 57.

A rather more generous definition of reasonable requirements is given by Scott LJ in the case of Ackworth -v- Ackworth [1942] P21 (LA) which he summed up as being

a very wide word and …… should be read as covering everything which a wife may in reason want to do with the income which she enjoys. It includes much more than food, lodging, clothes, travelling and so on. It includes ………… charity and making arrangements for the future, thus incurring various liabilities in her discretion, and it is wrong to limit it to any particular form of expenditure. The figure arrived at by the court in the first instance was not arrived at primarily on the basis of her needs. It is not for the court when making a maintenance order to decide by a close consideration of a wife’s needs how much she ought to spend. I do not say that the needs of a wife should be altogether disregarded, but I do say that it is not a primary consideration”.

Yet another consequence to applying a “reasonable requirement test” is the development of what became known as “the millionaires defense”.

This is demonstrated in the case of Schlesinger -v- Schlesinger [1960] P191. Mr Schlesinger was found to be a man of great wealth. It was decided that he did not need to provide the court with a full discovery of his financial circumstances. It was simply accepted that he had a nominal income of £110,000.00 per annum and net capital assets of approximately £2,000,000.00 (£40,000,000.00 in today’s figures) Mrs Schlesinger had no income or capital of her own and was awarded £20,000.00 per annum (equivalent to £400,000.00 per annum in today’s figures).

This is one of the approaches that was challenged and discredited in 2000 in the landmark case of White -v- White [2000] UK HL54.

Cases where Joint income did not meet needs

Where there was not enough money to be shared between the parties the court would attempt to provide the husband and the wife with a comparable standard of living. Kershaw -v- Kershaw [1966] P13 and Ackworth -v- Ackworth [1942] P91. It was however the case that the husband’s expenses were looked at first to reach a so called “just solution” see Chichester -v- Chichester [1936] P129.

Dum Sola Et Castra Vixerit

As we have seen in 1857 the Civil Court gained the power to make provision for wives by way of periodical payments of maintenance that was secured on capital (often the wife’s capital) until 1907 when it became possible to order unsecured payments. This provision however could only be accessed by an innocent wife usually a wife abandoned following her husband’s adultery. Furthermore, provision was limited to her remaining dum sola (on her own) and castra vexerit (chaste). The major reforms to the divorce legislation at the end of the 1960’s which culminated in the MCA 1973 ended those prohibitions and defined spousal maintenance in Section 23 (1) (a) as an order that

either party to the marriage shall make to the other such periodical payments for such term as maybe specified in the order”

Section 23 (3) (a) also allowed for financial provision by way of lump sums payable to either party for

the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family”.

Section 25 of the MCA 1973 sets out the

matters to which the court is to have regard in deciding how to exercise its powers under Section 25”

and that by paragraph 2(g)

the conduct of each of the parties if that conduct is such that it would in the opinion of the court be inequitable to disregard it”.

Lord Denning dealt with the issue of conduct in Watchell stating: –

when Parliament in 1857 introduced divorce by the Courts of Law, it based it on the doctrine of matrimonial offence. That affected all that followed if a person was the guilty party in a divorce suit it went hard with him or her. It affected so many things. The custody of the children depended on it, so did the award of maintenance to say nothing of their standing in society. So serious were the consequences that divorce suits were contested at great length and at much cost”.

where it was the wife who had caused the breakdown of the marriage either through adultery, her behaviour or desertion she could not expect support from her husband”.

However, Lord Denning went on to find that: –

in the financial adjustments consequence upon the dissolution of a marriage which has irretrievably broken down the imposition of financial penalties ought seldom to find a place”.

This was a pivotable decision. Since 1973 conduct is very rarely successfully pleaded to prevent the payment of maintenance.

Long before the reforms introduced by the MCA 1973 there had been disquiet expressed by the Court of Appeal in particular about the harsh consequence of the concept of Dum Sola and Casta Vixerit and the inability of a wife held responsible for the breakdown of a marriage to have any financial support.

Prior to 1857 the Ecclesiastical Courts had ensured that even an adulterous wife should have some provision made for her. In the case of Robertson -v- Fargrossa [1883] 9PD94 (CO) the Court of Appeal spoke out as to whether or not Parliament had been correct to depart from that practice.

It went further in Ashcroft -v- Ashcroft and Roberts (1902) P270 where the husband was a moderately wealthy timber merchant. There were 5 children of the family and the marriage had lasted 23 years. After her adulterous affair with Mr Roberts the wife was left alone in poor health with no means of earning a living. She was destitute. In the first instance she had succeeding in getting an order of £1.00 per week just enough to prevent her from becoming homeless. Her husband’s appeal was unsuccessful, the Court of Appeal being satisfied that the court had the power to provide a “compassionate allowance” for wives in such circumstances.

By the 1960s the concept of “compassionate allowance” was seen as insufficient to support wives in such circumstances and the Ashcroft decision was regarded as having come from a past age with no place in the contemporary law of maintenance.

Porter -v- Porter [1969] 3ER 640 was a case where the court decided that before a wife was deprived of her right to maintenance it would be for the husband to establish that her misconduct was of such

a really serious nature, disruptive, intolerable and unforgiveable”

that it would be inequitable to disregard it. The court indicated that its discretionary powers would enable it to provide for such wife and the court commented that

the law is a living thing moving with the times and not a creature of dead or moribund of thought”.