Caroline Swain, Partner, Matrimonial and Family Law provides a guide to spousal maintenance.
What is spousal maintenance?
It’s a regular payment (usually monthly) made by a former husband, wife or civil partner to their partner from whom they are separated. It’s only paid where one partner is unable to financially support themselves without continued financial assistance. The amount received depends on an interpretation of need: including how much the ex-partner needs to live on; how much income they already have and, their future earning potential.
Spousal maintenance can make divorce cases complex. Many people don’t even realise that there is a duty from one spouse to another to financial support the other both after separation and after divorce.
When is spousal maintenance paid?
Spousal maintenance is not an automatic entitlement. Due to legislation, the court must consider if both parties can achieve a clean break or if spousal maintenance is required. A clean break ends all financial claims (apart from child support).
If the marriage or civil partnership is short (typically, less than five years), then spousal maintenance may not be paid at all or only for a short period through what is called a ‘term order’.
If the couple has been together for a long term or where an ex-partner is unable to achieve financial independence, then spousal maintenance can be paid for life.
How is it calculated?
Unlike child maintenance there is no set formula for the calculation of spousal maintenance. The level paid depends on financial needs.
There is not an automatic right to an equal share of income unless, through the disclosure process, it can be shown an equal share is “needed” (note that the concept of “need/ed” is not fixed in law).
During the disclosure process the couple draws up a list of their current and anticipated future outgoings. The list is used to achieve fairness and acts as a balancing exercise.
When determining whether spousal maintenance should be paid, how much and for how long, the court will look at some of the following circumstances:
• The length of the marriage
• Number of children and time taken out of work to care for them
• Standard of living before the divorce
• Both parties’ day to day financial commitments (including child maintenance)
• The need to house both parties
• Future earning potential
• Continued shared parental responsibilities
The appropriate amount of maintenance varies significantly from case to case.
When does spousal maintenance stop?
Spousal maintenance is paid for a fixed term or for the rest of a person’s life. Some term orders can be extended and some are prohibited from an extension of time.
Independence
Spousal maintenance is there to aid a transition to financial independence. Current legislation states that spousal maintenance should end as soon as it is just and reasonable. This could be when the youngest child is 18 or when the person receiving the payments remarries or enters into a civil partnership.
In certain circumstances the court may order spousal maintenance for a short term (two to five years) to enable someone to re-train or re-enter the workplace after raising children. However, if the person has been out of work for many years then the court may order ‘joint lives’ maintenance – spousal maintenance on a lifelong basis.
Nominal Order
This is where no substantive payment is made but there is no clean break. This leaves the door open for claims to be made at any time in the future.
Re-marriage
If the recipient remarries then spousal maintenance stops. However, it does not end by law on cohabitation as cohabitation does not create a legal commitment.
Spousal maintenance is complex. It offers financial support/compensation for ex-partners who have had the course of their lives changed and missed out on earnings by a change in their career or disability or bringing up children or running a household.
If you’d like to find out more about spousal maintenance and the options available to you then you can get in touch with Caroline at caroline.swain@bpsfamilylaw.co.uk or by telephone on 0161 926 1430.
