The Liability To Maintain And The Child Support Act
by Peter Snow LLB (Hons)
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14 Periodical Payments After Divorce. The practice of the divorce courts since 1971

The argument that orders for periodical payments for maintenance are unlawful if made for the benefit of a person whom the person ordered to pay is not liable to maintain might appear to fall down in view of the divorce court practice of making such periodical payments orders after divorce, when neither party is liable to maintain the other.

But the reason why Parliament conferred this power upon the divorce courts was explained by Lord Atkin in Hyman v. Hyman [1929] AC 601. A wife who had succeeded in divorcing her husband for cause, in the fault-based jurisdiction which then obtained, would thereby have lost her entitlement to be maintained by him as a wife, and it was therefore necessary that the court should have the discretionary power to make an order for periodical payments in her favour. That remains the basis of the power which is still possessed by the divorce court today. The power is still discretionary, and the fact that since 1971 it has been exercised in many cases where the original justification for its exercise - i.e., that a wife is an innocent party in a divorce which might have been thrust upon her against her wishes - does not exist, in no way alters the character of the discretionary remedy which is historically in effect a remedy for breach of contract rather than for neglect of a duty to maintain.

14.1 Abatement of entitlement to income support by periodical payments after divorce.

National Assistance Board v. Wilkinson [1952] 2 All ER 255 is still authority for the proposition that the D.S.S. is not entitled to recover expenses of income support from a husband in respect of a wife who has committed adultery or who is in desertion. Periodical payments to former spouses after divorce have for many years enabled the D.S.S. to benefit "by the back door" by abatement of income support entitlement - and indeed, the Social Security Statistics have for years described payments received from former spouses as "Liable Relative Payments". Frequently this has meant that the Department has been able to benefit from divorce (which has released both parties from their liability to maintain each other under (now) the Social Security Administration Act 1992), in circumstances in which it would not have succeeded in proceedings before magistrates under section 106 of that Act if the parties had remained married.

14.2 The "clean break" encouraged by section 25A of the Matrimonial Causes Act 1973 as amended by the Matrimonial and Family Proceedings Act 1984.

"Clean breaks" from periodical payments ordered on divorce could be obtained by consent before the passing of the Matrimonial and Family Proceedings Act 1984 (see Minton v. Minton [1979] 1 All ER 79). But the 1984 Act gave the court power to order a "clean break" without consent. This power could be exercised in respect of orders for the parties but not for children: section 25A(3) said that "the court may dismiss the application [usually the wife's] with a direction that the applicant shall not be entitled to make any further application in relation to that marriage for an order under section 23(1)(a) or (b) above".

"Clean breaks" without consent were rare. Also, during the first five years after the coming into force of the 1984 Act successes by former husbands on appeal were conspicuous by their absence.

Both before the 1984 Act came into force and for some years afterwards it had been widely argued that a "clean break" in respect of periodical payments for a former wife would not be possible unless she had become "self-sufficient" (this ignoring the fact that former wives who were not "self-sufficient" would frequently be entitled to income support, and that former husbands were not liable to maintain them). But a practice of negotiating a "clean break" by consent in return for transfer by the former husband of his share of the equity in the former matrimonial home became widespread after 1987. "Self-sufficiency" went out of the window. Many former wives took the property transfers and ran - leaving the D.S.S. to pick up their maintenance bills. Hulley v. Thompson [1981] 1 All ER 1128 is authority for the proposition that a "clean break" by consent cannot exclude an order in respect of children whom the payer is liable to maintain for income-support purposes.

14.3 Ashley v. Blackman And Barnes v. Barnes

As recently as 1987, nearly three years after the coming into force of the Matrimonial and Family Proceedings Act 1984, Professor Stephen Cretney said at the annual "Family Law" Conference that the "clean break" would not be possible where a former wife was not "self-sufficient". But in 1988, in Ashley v. Blackman [1988] 18 Fam Law 430, Waite J awarded a "clean break" to a hard-up former husband whose payments had merely served to abate his former wife's entitlement to supplementary benefit - saying that the principle in Barnes v. Barnes [1972] 3 All ER 872 (that such benefit should not be taken into account as "other financial resources" under section 5(l)(a) of the Matrimonial Proceedings and Property Act 1970 (subsequently re-enacted as section 25(2)(a) of the Matrimonial Causes Act 1973)), should now be modified for the "genuine struggler" (as distinct from the "devious or feckless" husband) in the light of the "clean break" provisions of the 1984 Act.

The present writer had always regarded Barnes v. Barnes as wrongly decided, for two reasons: firstly that that case concerned a former husband who was not liable to maintain his former wife for supplementary benefit purposes and therefore owed no obligation to the State in respect of her, and secondly that Edmund Davies LJ had acted without authority in refusing to take into account supplementary benefit as "resources" which were not specifically excluded by the Matrimonial Proceedings and Property Act under which he was obliged to operate. Ashley v. Blackman came before Waite J on application by the former wife to have periodical payments of £14 per week varied upwards and a cross-application by the former husband to have the order discharged under section 31 of the Matrimonial Causes Act 1973 as amended by the 1984 Act: providing the present writer with a long-awaited opportunity to attack the Barnes principle, which must have been the basis of innumerable orders against former husbands for the sole benefit of the DHSS and DSS. In "Ashley v. Blackman and the Liability to Maintain", [1989] Sol. J, Vol.133 No.7, p.206, the writer was able to point out that there was no liability to maintain former spouses, and that therefore special dispensation for the "genuine struggler" to justify departing from the Barnes principle was unnecessary. Only where the payer was liable to maintain the payee for social security purposes should social security benefits not be taken into account. A copy of this article is appended.

14.4 "Clean Breaks" and Property Transfers in 1989 and the 1990 Act.

In an article at [1991] Fam Law 31, entitled "The Social Security Act 1990: The Clean Break Rejoined", James Wood reported that in 1989 there were some 34.000 lump sum or property transfer orders and only 10,900 continuing periodical payments orders in the same period, with 14,900 orders time-limiting or dismissing periodical payments altogether. These figures give some measure of the loss already sustained in 1989 by the DSS as a result of the "clean break" provisions of the 1984 Act. Apart from a likely increasing trend away from periodical payments in new divorces, it seems probable that negotiated "clean breaks" in existing cases of periodical payments (some of many years' duration) would present the DSS with increasing concern about claims by divorced women for income support in the future. Finally, repetitions of Ashley v. Blackman (DSS-inspired application by a former wife to vary payments upwards frustrated by discharge of the order) would produce such claims in any event. The 1990 Act was described by the Government as an "interim measure" pending preparation of the so-called "child support" legislation. With the peculiar new section 24A which it inserted into the Social Security Act 1986 saying in the same breath that a liable parent who, though liable to maintain the child, was, "by virtue of not being the husband or wife of the claimant, not liable to maintain the claimant", yet could be ordered to pay for the claimant (see Paragraph 4.14 of this Paper), the 1990 Act was not only the most radical breach of the rule of law since the introduction of the "child of the family" stepchild provisions in 1958 but also made a nonsense of the whole basis of the settled responsibility for public assistance that we have had since 1598

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