What is spousal maintenance?

  • Family Law

Out of all of the subjects tackled by family lawyers, spousal maintenance tends to be the one which clients struggle with the most – both legally and morally. It is not helped by the fact that spousal maintenance is extremely complex in England and Wales and the potential outcomes vary significantly from case-to-case.#

Therefore, I have prepared this blog to provide some basic information about spousal maintenance and how it is dealt with in divorce and dissolution cases.

What is spousal maintenance?

Spousal maintenance are payments by one spouse or civil partner to their former spouse or civil partner. It is paid in addition to any child maintenance which may also be payable.

The objective of maintenance orders is to enable a transition to independence, to the extent that it is reasonable bearing in mind the length of the marriage, standard of living, the need to house the parties, and the continued shared responsibilities relating to children.

Why and when is maintenance paid?

Spousal maintenance is a difficult concept to grasp, and this is understandable given that the law in England and Wales is not particularly clear on the issue and potential outcomes. Furthermore, it is common for those who may have to pay spousal maintenance to struggle to understand why they need to support their former spouse or civil partner – often because they wish to sever all financial ties with that party.

Ultimately though, there is a legal duty for spouses to support each other whilst the marriage/civil partnership exists, and this legal duty often continues after a divorce or a dissolution.

There are many divorce and dissolution cases which are settled on a “clean break” basis which means no spousal maintenance is payable by either party to the other. That said, where there is a disparity between the parties in terms of their respective incomes and earning capacities, the Court will not ignore this fact and will consider the outgoings for each party and decide whether their income needs can be met through their own income and resources. If so, a clean break will generally be appropriately. If, however, this is not possible, then spousal maintenance will often be ordered to “top up” the income to help the spouse or civil partner meet their needs.

It is important to note that there is no legal obligation for the spouses to receive an equal share of the family income after a divorce or dissolution since the law simply requires that the parties’ needs, including income needs, are met. There is also an obligation on the party receiving spousal maintenance to maximise their own income. This may require them to increase their working hours to full time or to get a job if they are not working at all. It may also require them to seek better paid employment if their skills and qualifications would enable them to do so – for example, a chartered accountant who chooses to stack shelves in a supermarket may be expected to return to accountancy to maximise their own income rather than relying on a former spouse or civil partner.

The concept of spousal maintenance is simple in theory – meeting the needs of the spouse or civil partner who has less income than the other and where they may struggle to pay their own outgoings through their own income. That said, the reality is a lot more complex since each case turns on its own facts. Furthermore, spouses and civil partners will often rely on each other to make a family unit work financially and practically. This could, for example, involve one party giving up a successful job to care for the parties’ children. It could also involve someone being encouraged to take a career break to set up and run a well-oiled home for the family. In such circumstances, the disparity in income and earning capacity can be significant so the Court may have to shift some income to the financially weaker party to make up any shortfall in income. Whatever the position, the concept of spousal maintenance means that both parties are likely to be approaching the issue from competing angles with one not wishing to pay any, or much, spousal maintenance and the other perhaps wanting to secure as much as is reasonable or possible. Therefore, arguments about maintenance can be lengthy, complicated and time-consuming and it is also why legal advice on the issue is almost certainly crucial.

How much maintenance should be paid?

Each case will turn on its own facts and the Court will need to carefully consider what the income needs of both parties are and how these can be met from the available income. The income needs are usually “generously interpreted” according to current case law which, in effect, means that a spouse or civil partner used to an affluent lifestyle during a marriage or civil partnership may expect the Court to accept higher outgoings as they exit the relationship due to them becoming used to a certain lifestyle. On the flipside, if a family have lived a modest or frugal lifestyle, then the Court may take the view that income needs should be more subdued.

A good example of this concept is where 2 people go to buy a candle. An affluent person may not quibble at the thought of spending £50 on a single candle but a frugal or less affluent person may believe that such an item should cost no more than £5. Both have bought the same item, but the value attached to it by each is very different. The Court will look at a parties’ marriage or civil partnership in a similar way and consider the lifestyle they have enjoyed. If it is one of lavish expenditure, then the future income needs will be interpreted at a higher level whereas, if the parties have been careful with money or have not had very much income, then the Court may take the view that frugal expenditure in the future is appropriate.

When parties discuss a potential financial settlement, they usually complete and exchange outgoing budgets showing what they believe they may spend in the future after the divorce or dissolution. This will then be considered by the other spouse or civil partner and sometimes the Court and what is needed within the budget will likely be discussed. The aim being to meet the income “needs” for the parties from those budgets as far as possible but noting that the concept of needs is a flexible one which means that arguments over budgets and items within them are often fought about.

How long will I have to pay maintenance for?

Much like how much maintenance is payable, the length of time maintenance is to be paid over is often argued about in many cases. This is partly because the law on when maintenance should end is not particularly clear and much will depend on the facts of each case.

Current law in England and Wales requires that maintenance ends as soon as it is just and reasonable. Generally, where maintenance is ordered, a term order will be preferred by the Court unless the ending of maintenance at a set date in the future would leave the receiving spouse or civil partner unable to adjust without undue hardship.

As it stands then, the term of spousal maintenance is typically one of the following:

  1. Until the youngest child of the family attains the age of 18 years or completes their secondary or sometimes tertiary (i.e. university) education;
  2. The receiving party’s death or remarriage;
  3. Until a set date or trigger event in the future – i.e. 5 years from the start date.

 

Maintenance is sometimes defined as nominal maintenance which means that no actual payment will be made by the paying party and, instead, the potential claim to maintenance will remain live and available if the receiving party needs actual payments from the paying party. An example might be the ill-health or loss of a job for the receiving party. That said, it is rare for nominal maintenance orders to be converted into substantive maintenance orders.

Cohabitation does not bring to an end spousal maintenance payments, unlike the receiving party’s remarriage. That is unless the parties have agreed for cohabitation to be a trigger event when spousal maintenance should end.

What should I do next?

The issue of spousal maintenance is a complex area of the law and one where legal advice is likely to be essential. If you would like to discuss potential or existing maintenance claims, then we at Summit Law would be happy to talk through your options with you. The family team at Summit Law have experience and expertise in advising on, and dealing with, these cases involving spousal maintenance. We will be able to help and support you by providing friendly and bespoke advice tailored to you, your case, and your needs.

Our family team can be contacted on 020 7467 3980 or by e-mail at info@summitlawllp.co.uk.

 

Article Author

Matthew Thom

Matthew Thom

Partner