“The Italian Job” …..re Spousal Maintenance

SHOULD THE UK COURTS FOLLOW THE ITALIAN SUPREME COURT ON SPOUSAL MAINTENANCE?  Vijaya Sumputh, Solicitor, Family Law specialist at Curwens asks whether this case will have any effect.

According to “The Telegraph”, Vittorio Grilli, the former Italian Economy and Finance Minister (2012-2013) and his former wife Lisa Lowenstein, an American businesswoman, divorced acrimoniously in 2013.  Vittorio was ordered to pay his former wife the monthly sum of €2M to maintain her lifestyle but that was not the end of legal proceedings as Lisa then returned to Court to make Vittorio pay her debts.

The Court of Appeal in Milan rejected her claim for maintenance payments for life on the grounds that her Income Tax Returns were incomplete and Vittorio’s income had since reduced, so Lisa took the matter to the Supreme Court in 2014.

In May 2017 the Supreme Court of Cassation in Rome ruled that divorcees do not have the right to automatic indefinite maintenance payments.   The Judges stated that divorce should be modernized and not be seen as “set up for life”.  They concluded that divorcees who have independent means or the capacity to work, should not expect to receive maintenance payments indefinitely. They stated that divorced parties are not all entitled to maintain the same “tenor of life” as when married and, if possible, they need to learn to be self sufficient.

The Judges further recommended that keeping up payments indefinitely can be “an obstacle to starting a new family”  and have called for the divorce law to reflect modern relationships.

Now that the Italian Family Law system has rejected the idea that divorced spouses are guaranteed their previous standard of living, it is likely that many Italian divorcees will want to challenge their divorce settlements, however, the Italian Family Court will have to be incredibly careful not to discriminate against the financially weaker party and unfairly disadvantage those without the means to gain financial independence.  While they may no longer guarantee life long maintenance payments, they must guarantee provision for those who lose their earning capacity because of their commitment to marriage.

Given Italy’s trend, it will be interesting to see if other justice systems will also be tempted to reform the reasoning behind divorce settlements.

In contrast, only a few months ago, in a UK divorce case, Mills v. Mills, the former husband asked to end indefinite maintenance payments under English Law.  The parties were married for 13 years. The wife said that in the early years of the marriage, she ran her own beauty business and financially supported the family while the husband finished his studies, after which they both then worked together to set up his business as a surveyor. The parties have one son, who is now at university.

Towards the end of the marriage, the wife suffered serious health problems and had to reduce her working hours. The parties separated in 2001 and divorced in 2002. They reached an agreement that the family home would be sold, the wife would receive £230,000.00 from the sale to buy a new home for herself and their son, and husband would keep his business assets. Additionally, the husband agreed to pay the wife spousal maintenance of £1,100 per month. In 2014 the husband applied to court to end those payments and the wife cross-applied to increase them. The judge disagreed with both of them so they both appealed.

The Court of Appeal found that the original judge had erred in not increasing the maintenance to cover the wife’s shortfall, despite knowing that she could not meet her basic needs and the husband could afford it. The appeal court increased the maintenance to £1,440 per month indefinitely.

This shows that in the UK, maintenance payments continue to be set for a limited period of time or until one party dies, marries or enters into a civil partnership but the Court calculates maintenance payments based on the financially weaker party’s income needs and earning capacity, considering a range of factors such as their age, the length and living standard of their marriage, their health and caring commitments. While each case is specific to its own facts, the Court’s objective is always to enable a party to make a transition to independence where possible. On the facts of the Mills case, the wife was not able to make that transition

At Curwens we are regularly faced with the issue of claims for maintenance, acting for either the person making or challenging the claim.   We provide expert advice on what is a reasonable amount to expect to be awarded or agreed.  We will also guide you through the procedure and explain the financial risks where agreements cannot be reached.  It is therefore essential that you obtain expert legal advice on your position.

Vijaya (Asha) Sumputh

vijaya.sumputh@curwens.co.uk

Family Law Solicitor – Curwens LLP.

Vijaya offers both fixed fees and flexible pricing for all family law services. For an initial consultation, call Vijaya direct on 0208 884 7221 and she will be happy to help you with all your family queries.

www.curwens.co.uk                                                                                      CURWENS LLP

Want to get paid ?

Clients often come to our Debt Collection service (“Prompt Pay”) when they are owed money and want to “go legal”. They sometimes have problems, however, with our first question which is “can we have all your papers?”

They often are so focussed on doing a great job for their customers that they lose sight of the need to keep good records as the job goes on. They can’t imagine it might go horribly wrong further down the line and they will need to issue Court proceedings. This is often the case in the building trade – not so much in the very large contracts but more often than not in the smaller projects such as extensions, kitchens, conservatories etc.

I’ve heard it said before…. “we don’t have a contract, it was just verbal”. This is a popular mistake – a contract can certainly be formed verbally but the problem is that when it goes wrong, it’s much more difficult to get convincing evidence, which is why solicitors advise contract terms and conditions should be in writing.

We always advise starting as you mean to go on – with good paperwork from estimate onwards, with details of any extras (there are always extras!) signed off by the customer as you go along. One useful tip – if you have two customers, say joint householders, either get them both to sign off extras or if one is giving instructions and taking the lead on the project, get an authority from the other one – believe me, it will save a lot of grief further down the line.

One last note of caution – it’s so easy nowadays to slip into over-familiar language in emails and, as a contract goes wrong and perhaps tempers get frayed, it might be tempting to fire off a heated email without thinking it through. Remember, if the case goes to Court, all that documentation will at some time be seen by a Judge who will be reading it in the cold light of day. Wouldn’t you like to be the one who sounds the most reasonable in how you dealt with a dispute? Just count to 10 (twice!) and edit before hitting “send” !

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