Comparing countries — more on spousal maintenance

By Suzanne Kingston

In a two-part analysis, we compared how different jurisdictions dealt with spousal maintenance. The countries surveyed were California, Cyprus, England and Wales, France, Germany, Ireland, Italy, Jersey, Malta, New York, New Zealand, Portugal, Scotland, South Africa, Spain and Switzerland.

Perhaps one of the most interesting points to come out of our analysis is the recognition that the label attributable to London as being the ‘divorce capital of the world’ does not necessarily derive from the court’s approach in respect of spousal maintenance. Upon reflection, it seems likely that the label has more to do with the overarching discretion of the court to reach a ‘fair’ outcome. The court is not constrained by a fixed formula or default marital property regime as it is in a number of other jurisdictions. Having said that, fairness obviously feeds into the determination of the appropriate level of spouse maintenance.

In its Report on Matrimonial Property, Needs and Agreements, the Law Commission was tasked with examining the extent of ‘financial needs’. In its report, it acknowledged that while practitioners know what is meant by ‘needs’ within the family law context, further guidance is needed for the growing body of litigants in person. The Law Commission proposed that authoritative guidance should be drafted on the meaning of financial needs on divorce, which would include a statement of independence…

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