Spousal Maintenance

In this blog post I talk about spousal maintenance and hopefully answer the most commonly asked questions about it.

Spousal maintenance is a sum of money paid from one spouse, or civil partner, to another.  Spousal maintenance can be paid for a set or variable period of time and, sometimes, for life. It can be payable both during separation of the spouses and before the divorce is finalised/civil partnership dissolved, and also post-divorce/dissolution of the civil partnership.

If you are separating and are not married but have been living together, then this type of maintenance is not payable.

Spousal maintenance is payable where there is a disparity in income between the spouses and the reasonable needs of one spouse cannot be met without the maintenance. When considering this the standard of living the parties were accustomed to during the marriage is taken into account, as well as the income and earning capacity and budgets of the two spouses.

The reasons for the divorce/dissolution of the partnership do not affect the ability to claim spousal maintenance. Behaviour and conduct are only taken into account in financial proceedings in extremely rare circumstances and normally financial matters are considered separately to the divorce itself.

There is no set formula for spousal maintenance. Spousal maintenance is based on the reasonable needs of the parties.  Both parties prepare a budget setting out their income and outgoings, and consideration will then be given as to what is reasonable in light of the figures.

The amount of spousal maintenance varies from case to case as it is based on reasonable needs.  Maintenance in the interim period before finalisation of a divorce is typically based on a more stringent budget than maintenance post divorce. That said, maintenance should not be based on a random Wish List and budgets are looked at carefully, taking into account ability to pay and the standard of living the parties were used to during the course of the marriage/civil partnership.

The amount of spousal maintenance can be agreed between the spouses. However, if agreement cannot be reached then an application can be made to the court. If divorce/dissolution proceedings have already been issued then this is usually done by sending to the court a Form A along with the requisite court fee which.  Form A can cover a financial application for capital and pensions as well as maintenance. The court will give details of a timetable that is to be followed and the first step in that timetable is to complete a Form E which is a detailed financial form setting out full information on income capital and pensions along with supporting evidence.  Form Es are then exchanged, so each spouse should then have a detailed financial picture of the other spouses situation. This process is referred to as ‘financial disclosure’.

If spousal maintenance is needed urgently then an earlier hearing date can be requested dealing solely with the issue of ‘interim’ spousal maintenance.

When considering the long term issue of spousal maintenance, it is not looked at in isolation to other assets – there may be substantial capital and pensions that enable a ‘clean financial break’ to be effected in a case where spousal maintenance would normally be payable.  That said, if spousal maintenance is needed before the final financial order is made (interim spousal maintenance) then it will be looked at in isolation to the capital and pensions issues, although the spousal maintenance can then stop when the final financial order is made and a clean break be imposed if there is sufficient capital to do this and if it is right in the circumstances.

Duration of payment depends on the circumstances. Length of the marriage (taking into account any seamless period of cohabitation prior to marriage) will be a relevant factor as well as the disparity of earning capacity between the parties and the ability of the recipient to re-establish themselves in the employment market and maintain themselves financially in the future.

Sometimes maintenance is for an adjustment period in order to allow a person to retrain/build up their income to become self-sufficient. On other occasions maintenance can be paid for life although, with the wide use of pension sharing orders these days, income received in retirement as a result of any pension is taken into account and so receipt of pension income will often be a natural cut-off point to any longer term maintenance order.

If the recipient remarries then the maintenance claim automatically ends and no further maintenance is payable. Cohabitation is often used as a reason to reduce maintenance to a nominal amount, although it will not automatically end maintenance unless agreed by the parties/ordered by the court.

In some cases it is uncertain as to whether one party can be financially independent. By way of example, if there are young children unexpected changes in the future can have adverse financial knock-on effects. The child maintenance formula is so formulaic that it provides little scope for extra assistance. A nominal spousal maintenance order is, in reality, a safeguarding measure. Such an order states that a small sum, such as £5 a year, should be paid to the recipient. This keeps the maintenance claim alive so that if there are financial problems at a later date then the issue of spousal maintenance can be revisited. However, it does not give carte blanche to the recipient to “have a second bite of the cherry” and any argument for increase in maintenance must be reasonably justified. Of course the ability of the payer to increase the nominal sum is material.

It is important to note that it is possible to apply to capitalise up a maintenance order at a later date so that a capital lump sum is paid to end the maintenance claim. However, this is different to any division of capital that may have taken place at the time of the divorce/dissolution of civil partnership.

• What happens if I lose my job & can’t pay the spousal maintenance?
• Can I get the level of spousal maintenance reduced?
• How can I stop paying spousal maintenance?

The above questions all come under the umbrella of variation – spousal maintenance can be increased or decreased on application to the court by either party. The amount will often be varied where financial circumstances have changed and either the paying party can no longer afford to pay the amount ordered (so the sum is decreased) or the recipient has run into financial difficulties and needs more money (potentially increasing the sum paid).  As can be seen therefore, the amount can go up or down.  However, any increase or decrease in spousal maintenance will be looked at carefully, again based on the income of the parties and their reasonable needs.

There will once more have to be financial disclosure, concentrating on income and budgets, although the court, as mentioned above, can order a capital lump sum when reviewing spousal maintenance.  Such a lump sum is paid in lieu of any future maintenance and so usually ends the maintenance claim (providing a clean financial break).

The court can order that arrears of maintenance are paid, although they do not automatically backdate spousal maintenance arrears for more than 12 months.  The court will consider the best method of enforcing the maintenance order, options including:

•  an attachment of earnings order (money debited from wages);
•  a warrant of control (bailiff seizing goods);
•  a third-party debt order (freezing accounts and paying out to third party);
•  a charging order (on a property);
•  a judgement summons (potential imprisonment).

If you have any questions about spousal maintenance or wish to discuss any of the topics raised in this blog post with one of our solicitors, then please do not hesitate to contact us.