Mills v Mills

Is the Supreme Court adopting a "Northern" approach to spousal maintenance?

In the recent case of Mills v Mills [2018] UKSC 38 for once the Supreme Court has given judgment on a case that most people can actually relate to. The vast majority of cases decided by our higher courts involve lifestyles and assets that the rest of us can only dream of.

Mr and Mrs Mills were a fairly typical family. When they divorced in 2002 Mrs Mills received £230,000, which was the majority of the available liquid capital the family had. It was intended that she should buy a house for herself and her son outright, as although she was a qualified beautician and had worked during the marriage, she suffered with ill health and said she found it difficult to work meaning and she would be unable to furnish a mortgage. In addition Mr Mills was ordered to pay her periodical payments - that is spousal maintenance - of £13,200 per annum on a joint lives basis - ie payable until one them died. The payments would also end automatically if Mrs Mills were to remarry and, as with all maintenance orders, they are capable of being varied upwards or downwards if there is a change of circumstances.

In the event Mrs Mills did manage to obtain a mortgage and she decided to purchase a more expensive property than had been envisaged for £345,000. Between 2002 - 2009 Mrs Mills sold and purchased several properties, each time increasing the mortgage borrowing and choosing not to reinvest all the proceeds of and spending the same. By 2009 she had moved into rented accommodation and by the time of the first court hearing in 2015 she had none of the original capital left and quite substantial debt.

Mrs Mills applied to increase the maintenance her former husband was paying her and he cross applied to terminate the payments upon payment of a small lump sum and/or to reduce the payments and/or shorten the term they were payable for. The first Judge to hear the applications noted there was a shortfall between Mrs Mills' income needs, the income she could generate for herself and the current level of maintenance but held that it would unfair to require Mr Mills to pay for a shortfall that was due to Mrs Mills' unwise financial decisions leading to her to the position where she was paying rent. The Judge decided the original order should continue. Mrs Mills appealed and the Court of Appeal (who disagreed with the trial Judge) ordered Mr Mills to pay increased maintenance of £17,292 per annum.

Mr Mills appealed to the Supreme Court who granted him permission to appeal on the question of whether given that the original order had been designed to meet Mrs Mills housing needs he should be required to pay increased maintenance to cover her rental costs. The Supreme Court handed down judgment on 17 July 2018 and siding with Mr Mills upheld the original Judge's decision not to award an increase.

Some commentators have referred to this case as indicating the end of the so called "meal ticket for life" - fairly distasteful terminology, particularly in cases where the sums involved are modest as they were here, with the original order, (which was upheld), deemed to address needs generated by decisions and factors that arose during the parties' relationship. The Supreme Court said that this description of maintenance orders was inaccurate (as well as unattractive) given that such orders clearly set out the circumstances in which they will come to an end - the death of either party, or remarriage of the recipient, or further order of the court.

In not allowing Mrs Mill's appeal the Supreme Court is however continuing the recent approach of the higher courts to raise questions about spousal maintenance and an emphasis on the original language of the Matrimonial Causes Act 1973 that the court should try and achieve "a clean break" wherever possible providing it will not cause undue hardship. Recent decisions in several cases have indicated that a defined term order is preferable to the more open ended joint lives order - the rationale being that a term order provides more of an incentive for the spouse to improve their own financial position and that the paying spouse is not "the insurer against all hazards" as the court said in the case of Wyatt v Vince [2015] UKSC 14.

There has always been significant regional variation in the way that the courts have approached the issue of spousal maintenance. London's reputation as "divorce capital of the world" has in a large part come from an historically more generous approach to maintenance and a preference for joint lives orders. "Up North" the courts have been far more likely to expect a separated spouse to stand on their own two feet as soon as possible. It now seems everyone will be following the North's example.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.