THE controversial issue of spousal maintenance hit the headlines recently after a judge’s comments in the case of a millionaire horse surgeon. Lord Justice Pitchford said divorcees with children aged over seven should be expected to work, dividing opinion among lawyers and columnists.

As ever, there are two sides to the story.

On the one hand, a party going through a divorce who has been out of the workplace for years and stayed at home to bring up children – usually the wife – is likely to be distressed by the thought of being cast adrift. After all, his successful career was only possible because he could spend long hours at work and not worry about childcare.

On the other hand, the main breadwinner in a divorce, usually the husband, may feel aggrieved if he is asked to share his income with his ex-wife and financially support her indefinitely, even when the children are old enough to allow her to work.

In reality, maintenance cases are rarely black and white and, as ever, each one is fact specific.

The couple in this instance divorced in 2008 after 11 years of marriage, and the original Divorce Order provided for Ian Wright to pay Tracey Wright £75,000 per year, plus their two children’s school fees. Mr Wright, 59, believed it was unfair for him to pay spousal maintenance into his retirement while Mrs Wright, 51, did not work. The initial judge provided for the spousal maintenance to be reduced gradually over five years, which Mrs Wright objected to. However, her application for permission to appeal was dismissed.

Sitting in the Court of Appeal, Lord Justice Pitchford said it was “imperative” that she found a job, like “the vast numbers of other working women with children”. Mrs Wright argued that although one of their children boarded at school, caring for their ten-year-old daughter made it difficult for her to go to work.

Despite the sensationalist press coverage that followed the case, on closer inspection it represents a fairly realistic interpretation of the law. The Matrimonial Causes Act 1973 sets out the issues to be taken into account when resolving financial issues in a divorce. Although judges have a wide discretion as to how to apply these factors, they are compelled to look at every case to see if it is possible to achieve a clean break. If it isn't possible, courts also have to consider whether it is appropriate for maintenance to be provided for a limited period of time, to enable a party in whose favour the order is made to adjust “without undue hardship” to their changed circumstances.

In recent years, London has been dubbed the “divorce capital of the world”, as wives in particular have been seen to secure favourable financial awards upon divorcing in the city, including maintenance for life. This is in contrast with other countries – Scotland, for example, only allows spousal maintenance for a maximum period of three years.

Outside London, particularly in the North-East and away from the millionaire cases, my experience is that such Joint Lives Orders are not so common.

Some commentators have suggested the case was influenced by there being a male judge in the Court of Appeal. (The initial judge was, however, a woman). Others think it marks a success for feminism, progressing from the view of a wife as dependent and unable to provide for herself.

The judgment is significant because the Matrimonial Causes Act 1973 is an old statute. This decision puts it in the context of the world we live in today, where a decreasing proportion of mothers stay at home on a full-time basis.

It must be remembered, however, that each case is fact specific. The Wrights were only married for 11 years, which is classed as a medium term marriage, and Mrs Wright was employed as a riding instructor and legal secretary before the marriage.

Moreover, there had been several years since the original order was made and the judgment did not provide for the financial support to Mrs Wright to immediately come to an end.

It set out a gradual reduction in maintenance and no bar was placed on any application to extend the term. The judge did, though, make it clear that if Mrs Wright sought to vary the order, the onus would be upon her to show what she had done to support herself.

In addition, Mrs Wright acquired a £450,000 mortgage-free house and stables for the ponies that she and her daughters' keep.

Although the judge’s comments in the Wrights’ case are likely to be considered in future settlements, it must be remembered that the circumstances of each case are unique. As in any litigation, the outcome was dependent on a judge exercising discretion about how to apply an old statute and making a decision that was ultimately binding.

Furthermore, the whole process was uncertain and expensive. The judge in the first instance indicated that over the course of the litigation the parties had spent “over £250,000, perhaps £300,000 on legal fees”.

A collaborative approach is an option to consider if you wish to avoid a court battle. It requires that both parties and their solicitors formally agree not to go to court, and work out the issues in group meetings. Mediation sessions are another option that avoids court. Meetings with a trained, neutral mediator are an effective platform to talk through and address stubborn issues between you and your ex-partner.

A mediator is only a facilitator and is unable to provide legal advice, so hiring a solicitor as well is recommended. It is likely, however, that the legal fees for mediation will remain less than court costs, because some issues will be resolved with their help.

n Elizabeth Gallagher is head of family law at Macks Solicitors, in Darlington.