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Spousal Maintenance UK

Blanchards Law is a niche family law practice with divorce solicitors, mediators and collaborative lawyers.

Can we help you? Please call us on 0333 344 6302 or email us at info@blanchardslaw.co.uk

What is spousal maintenance?

Spousal maintenance is an amount, awarded by the Courts to be paid by the spouse with the higher income (payer) to the spouse with the lower income (payee) when a couple divorce. It is only awarded if one party cannot support themselves without payments from the other and the needs of the recipient cannot be met from their own income. It can be awarded for a specified term or for life in some cases. It is different and separate to child maintenance.

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.  The recipient will lose their right to receive the maintenance if they re-marry, however it does not end if they simply cohabit.

Spousal maintenance is usually paid on a monthly basis and continues either for a defined period (“term order”) or for the remainder of the parties’ life (known as a “joint lives order”).  It is difficult and expensive to vary a spousal maintenance order later. It is important to get advice and get the order right first time.

How is spousal maintenance calculated?

Once it has been established that spousal maintenance should be paid, consideration is given to how long those payments should be made. This is subject to negotiation and the circumstances of each case. The court can order spousal maintenance to be paid during the parties’ joint lives, or until the remarriage of the recipient, or for a specific number of years (called a term order). Often the recipient will “need” a period of adjustment to enable them to increase their own income. Spousal maintenance may therefore be paid for a specific number of years to allow that party to increase their own income or until the family home can be sold, releasing capital to the payee. The spousal maintenance may be payable whilst the children of the marriage are still young and there is no realistic prospect of the recipient returning to work for the foreseeable future.

There is no set formula for the calculation of spousal maintenance, in the same way there is a set formula 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.

The Court will look at the parties’ day to day financial commitments including  housing and 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.

The team at Blanchards Law specialise in all things family, including spousal maintenance and considerations taken into account by the Court. Please call us on 0333 344 6302 or email us at info@blanchardslaw.co.uk

How long does spousal maintenance last?

This is known as a ‘clean break’

The court has a duty to dismiss the financial obligations between the parties as soon as possible.

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.

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. However, these are becoming less common.

Depending on the parties’ pension provision, maintenance may end on the parties becoming entitled to draw income from their pensions. These regular payments from you to your ex, or vice versa, are designed to bridge inequalities in your incomes. How much– and how long – varies from case to case, requiring expert guidance. You will often need help from a pension actuary who will calculate a fair division of the pension.

Unlike child maintenance, there is no set formula for working out how much spousal maintenance is payable.  As a result, it can be one of the most complex and contentious areas when it comes to sorting out your finances.

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.

This is where an order is made for a ‘nominal amount’ to be paid (sometimes defined as 5p or £1 per year) solely in order to keep the recipient’s claim open as a safety net. This money is never actually paid. Some family Judges are of the view that these types of order should routinely be made where the recipient is the main carer of the children to allow that person to concentrate on looking after the children and/or to cover a situation where there is a dramatic change in circumstances. It is common for nominal orders to be made for a limited term that ties in with the children reaching a certain age or ceasing full time education.

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. A change might be medical needs or a disability which means they can’t work and earn their own money.

Can spousal maintenance be varied?

It is difficult and expensive to vary a spousal maintenance order later. It is important to get advice and get the order right first time. 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 payer may have a change in income or the payee has a legitimate and reasonable change in personal circumstances or change in income.

At any time either the payee 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. Spousal maintenance may be paid on a regular, normally monthly, basis or can be paid as a single lump sum. This lump sum approach leads to each spouse becoming financially independent of the other and unable to make future financial applications against each other. This is known as a ‘clean break’.

One advantage of a clean break is that it brings certainty to both parties knowing that no further applications can be made. One disadvantage is that the lump sum award cannot be decreased at a later date, if for example the payee gets remarried. Therefore, it is essential that you seek specialist legal advice from a family lawyer whilst considering your options so that you secure what is best for you.

The team at Blanchards Law are expert in spousal maintenance and the considerations that need to be taken into account by the Court. Please call us on 0333 344 6302 or email us at info@blanchardslaw.co.uk

How can I stop paying spousal maintenance?

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

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

Different types of spousal maintenance

A lifetime order may be appropriate after a long marriage where there is a large disparity in the income/earning capacity of the parties or where there are young children and there is no realistic prospect of the payee returning to work for the foreseeable future.

A fixed term order is made for a specific number of years. It tends to be used after a shorter marriage particularly if the children are older or there are no children. Term maintenance may be paid up until a specific future event such as the recipient being able to draw down on a pension or completing a period of re-training.

Terminating spousal maintenance

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 the 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.

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

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

If agreement cannot be reached it may be necessary to apply to the court for a suspension or a variation 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 income 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 and meet their own needs from their own resources.

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.

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.

How are spousal maintenance awards calculated?

Any maintenance award depends on the payer’s resources and ability to pay as well as the recipient’s reasonable needs. There is no right to an equal share of income unless the recipient’s needs justify it. A former spouse cannot therefore expect a maintenance order which provides for equality of income. The approach taken by the court is a complex balancing exercise in trying to achieve fairness. They will consider both parties’ reasonable needs and try to achieve an order that meets those needs. The parties’ previous lifestyle is a factor to be taken into consideration but the reality is that both parties will be expected to cut back.

Consideration will be given by the court as to how much of the recipient’s reasonable needs can be met by their own resources. These will include not only any earned income but also child support, tax credits and child benefit and any other income whether from investments/capital which could be used to generate an income. The payee can also be required to downsize to make use of available capital.

Earning Capacity

A controversial issue is always earning capacity, as opposed to actual earnings. It is incumbent upon the recipient to make all reasonable efforts to maximise their income whether that be by way of increasing their working hours, undertaking training in order to improve their earning capacity or other means.

A court is not going to expect a mother with young children to work a 40-hour week. They will however expect a mother with school age children to be working hours that fit in with childcare particularly if the father is also able to deal with some of that care during the working week.

The goal is to try to provide support to the recipient in order to allow them to achieve financial independence sooner rather than later whilst ensuring that they are not left in an inferior financial position than the higher earning spouse.

Spousal maintenance raises lots of questions both for the person paying it and the person receiving it.  Clear, pragmatic advice is a must to be able to plan your future with confidence. It is difficult and expensive to vary a spousal maintenance order later. It is important to get advice and get the order right first time.

Can we help you? Please call us on 0333 344 6302 or email us at info@blanchardslaw.co.uk

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