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Spousal Maintenance

What is spousal maintenance?

Spousal maintenance is maintenance that is paid by a husband or a wife to their former spouse following a divorce. It is different to child maintenance. 

Spousal maintenance is usually paid on a monthly basis and continues either for a defined period (term of years) or for the remainder of the parties’ life (known as a “joint lives order”). 

Spousal maintenance ends if the recipient remarries or if either party dies. It may be varied or dismissed by the courts on a change in circumstances. 

What happens if I lose my job and can’t pay the spousal maintenance?

In these circumstances the payer of the maintenance should advise their former spouse to reach an agreement.

In some circumstances it may be necessary to apply to the court for a suspension of the maintenance order whilst the payer remains out of work.

In the event that alternative employment is found with lower or higher remuneration it may be that either party may then apply to the court for a variation of the existing order. 

My former spouse, the recipient of the maintenance, is now working – do I still have to pay them maintenance?

It will depend on the circumstances of the case. It may be that the party receiving maintenance is now earning sufficient that the spousal maintenance may end. It may be that it can be agreed that the maintenance may be reduced or end, or it may be necessary to make an application to the court for a variation application. 

The legal test is whether the receiving party can adjust without undue hardship. 

My former spouse, the recipient of maintenance, is now living with a new partner – do I still have to pay them maintenance?

Spousal maintenance does not automatically end on cohabitation of the recipient, although some court orders provide for this. Cohabitation is much more uncertain than marriage and cohabitants do not have the same financial claims against one another in the event of relationship breakdown. 

Whilst maintenance will not automatically end, when a party receiving maintenance begins to cohabit it may be appropriate for the maintenance to be reduced or end in light of their cohabitation and you should take specialist legal advice if this is the case. 

How is spousal maintenance calculated?

There is no set formula for the calculation of spousal maintenance as there is for the calculation of child maintenance. 

When determining whether spousal maintenance should be paid, how much should be paid and the length of time for which it will be paid, the court has regard to the overall circumstances. 

In determining the level of maintenance, regard may be had to the parties’ day to day financial commitments including any child maintenance obligations, and how these can be met from the available resources.

The appropriate amount of maintenance varies significantly from case to case, and specialist advice should be sought.  

Deciding the amount of spousal maintenance can be difficult though the lack of clear guidance given by the costs.

How long does spousal maintenance last?

The court has a duty to dismiss the financial obligations between the parties as soon as possible. This is known as a clean break.

So in some circumstances the court may order maintenance for a short period e.g. of two or five years or as appropriate to enable someone to move toward financial independence, for example by retraining or re-entering the workplace after raising children. This is known as a term order, or term maintenance. Some term orders can be extended, whereas with others there is a prohibition on extending the term.

In circumstances where a person has been out of work for many years, for example when raising children, a court may order maintenance on a lifelong basis. This is known as ‘joint lives’ maintenance.

Depending on the parties’ pension provision, maintenance may end on the parties becoming entitled to draw income from their pensions. 

What is a nominal maintenance order?

A nominal maintenance order is made in favour of one party where they presently have sufficient income to meet their needs and no substantive spousal maintenance is presently required, but may be needed in the future. 

A nominal maintenance order is often granted in favour of a parent who is a primary carer of children as a safeguard against any significant change in circumstance in the future which will render them unable to meet their financial need themselves so they can ask the Courts to vary the nominal order upwards to a substantive amount. 

Where care of a child is shared then a nominal maintenance order may be made on a reciprocal basis between each parent. In practice it is rare for a nominal maintenance order to be varied to substantive maintenance.

Can spousal maintenance be varied?

Either party can apply to the court to vary the maintenance upwards or downwards, if there is a change in their circumstances.  For example the paying party may have a change in income or the recipient has a legitimate and reasonable change in financial need or an income so not need any or so much maintenance. 

At any time either the recipient or payer can apply to the court for the maintenance to be capitalised, meaning that the payer makes a lump sum payment in lieu of ongoing maintenance. 

Where maintenance is for a non-extendable term it cannot be extended, although it can be varied upwards or downwards during its term.

There is an ongoing duty on both payer and recipient to inform the other of any material change in their financial or other circumstances.

How can I stop paying spousal maintenance?

Maintenance ends automatically if the recipient remarries or either the payer or recipient dies.

The paying party can apply to court for the maintenance to be reduced or brought to an end if there has been an adverse change in their financial circumstances or an improvement in their financial circumstances of the recipient.

When considering whether maintenance can be terminated the court will consider whether the recipient of the maintenance can adjust without undue hardship to the end of maintenance. 

When does a court order spousal maintenance?

Spousal maintenance arises where one party’s income or assets are insufficient to meet their day to day need, for example if they have a much lower income than the other or have not worked through some or all of the marriage and are unable immediately to become self-sufficient.

“Needs” may be generously interpreted. It is with reference to a number of factors including the assets available for distribution (including capital and income) and the standard of living enjoyed during the marriage. The court’s priority is to ensure the welfare of any children. 

 

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