De Cotta Law – Divorce, Law and Maintenance


In 1979 Lord Scarman sought to emphasise the principle of a clean break when a marriage ends in divorce – “An object of the modern law is to encourage [the parties] to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down”.


Yet this year, some 15 years after a divorce, an ex-husband was ordered to increase the amount of maintenance he was paying to his wife from £1,100 to £1,441 per month. This was despite the fact they had been divorced for more years than they had been married. In English judicial decision-making, there is always an emphasis on treating each case on its merits. In this case, Mills v Mills, the ex-wife had lost her capital as a result of non-profitable investments in property. Her barrister argued in court that she had not been “profligate or wanton” and had also suffered health problems arising from the stress caused by credit card debt. This brief report does not indicate how much wealth the husband had so it would be wrong to assume there were not good grounds for the decision.


The case though does highlight the different attitudes towards ongoing maintenance and it is interesting to see the principles applied in other jurisdictions. For example, in Scotland the law does not allow the imposition of lifetime maintenance. This is similar in Spain where the payment of a “pension compensatoria” generally lasts for two to three years.


In Spain, however, there are generally far less disputes over matrimonial finances because a couple on marriage will know their “matrimonial regime”. The certainty a couple will have is that if they marry in gananciales – community of property – they will know they have a 50/50 share in everything acquired during the marriage. Some assets are excluded such as inherited property and previously acquired property, but drawing up an inventory and splitting everything 50/50 does bring certainty. A couple in Spain can choose to marry in separación de bienes which is separation of assets and each retains sole ownership of their assets.


In any divorce there are very particular circumstances, so this article can only provide a broad brush approach to the financial matters. If you require any advice on divorce and financial matters you can contact us on or call for a confidential consultation on 952 527 014.


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