The Essentials of Spousal Maintenance
Spousal maintenance is a contentious topic for any divorcing couple, and it can be expensive, especially for those with high net worth. Just ask Russell Crowe. The multi-award Oscar-winning actor has been in the international media recently; not for his latest movie release, but for an auction of his possessions to help fund his pending divorce from Danielle Spencer. Such is the cost of setting up individual homes, and the ongoing maintenance payments, more couples are looking at ‘divorce auctions’ to help make a ‘clean break’ from their ex-spouse and fund the separation. In Mr Crowe’s case, he has been very open and vocal about the auction, which was held on 7th April at Sotheby’s in Sydney. The auction included a treasure trove of movie memorabilia, included, of all things, a codpiece, chariot, armour, and some prop horses from his blockbuster movie, Gladiator. There were also a large range of guitars (Crowe is a member of a band called ’30 Odd Foot of Grunts’), several paintings, and two classic and very valuable motorbikes.
But moving away from Hollywood movie star divorces to the realms of normality, what is spousal maintenance, how is it decided, and how can you ensure your best interests are served, whether you are subject to a maintenance order, or you are seeking one?
The essentials of spousal maintenance
Spousal maintenance refers to the payment/s made by one ex-spouse to the other, following divorce or dissolution of civil partnership. A spousal maintenance order, which is made by the courts under the Matrimonial Causes Act 1973 (MCA) and the Civil Partnership Act 2004 (CPA), is also commonly known as a ‘periodical payments order’. It is normally the financially dependent spouse who receives the payment to enable them to start their own life independent of their ex – also enabling them to learn new skills or re-enter their previous occupation (perhaps one that was given up to take on the responsibility of raising the children). It should be noted that spousal maintenance and child maintenance are completely separate matters.
Will a spousal maintenance order be granted?
There are a number of factors that the courts will take into consideration when deciding whether to grant a periodical payments order, as determined in the MCA and CPA, these include:
- The current and future income and earning capacity of each ex-spouse, including the potential increase of that capacity, that it would be reasonable to expect a party to acquire following the separation
- The current and future financial needs, obligations, and responsibilities of each ex-spouse, to maintain the same standard of living enjoyed before the breakdown of the relationship
- The age of the parties and the length of the marriage or civil partnership
- Any physical or mental disability of either individual
- The needs of any children involved
If both parties have broadly the same income level, then spousal maintenance would not be granted.
How much maintenance will be paid?
It is important for both parties to understand there is no strict formula for the calculation of spousal maintenance, as there is for child maintenance; instead, a checklist is followed as laid down in the MCA and the CPA. These seek to balance the earning capacity of the ex-spouses with their financial needs and places consideration of the welfare of any children in the family under the age of 18, front and centre.
But, crucially, any payments agreed initially may be varied later by the court, for example, if the ex-spouse who is making the payments has a reduction in their income. Therefore, while spousal maintenance payments place a considerable burden on the person paying, the ability of the payer to seek a reduction, can place considerable worry on the recipient. Correspondingly, if the payer’s income increases, and the payee is aware of this, they can seek an increase in the payments.
Securing the best outcome following your divorce or dissolution
The advice of a specialist family law solicitor can make the difference between maintenance that is grossly skewed in favour of one individual, and one that takes into consideration the needs of each party. A payment order that is overly in favour of the recipient is unlikely to be sustainable for the payer – and likewise, one that favours the payer may place a considerable hardship on the payee. It is the role of the judge to determine the optimal outcome for both.
English courts are renowned for favouring the financially dependent ex-spouse. This was illustrated in a major case in February 2017, which saw the Court of Appeal increase the monthly maintenance paid by Graham Mills to Maria Mills by one-third, 15 years after their divorce. The barrister for Mr Mills made the case that far from wishing to increase his payments to his ex-wife, he had now re-married and hoped to reduce or eliminate his maintenance obligations. As such, this case was seen as preventing Mr Mills from moving on with his new life, i.e. a clean break. This may lead to many more appeals for maintenance payments in the future. What this case illustrates is the tendency of the English court system to protect financially dependent parties can lead to the ongoing dependency of one ex-spouse on the other.
No matter how acrimonious a divorce or dissolution of civil partnership, the needs of both parties and their children must be balanced. This will ensure that where spousal maintenance is needed, a fair maintenance amount is agreed, which is sustainable while enabling the financially dependent party to re-establish their own independence over time.
If you are required to make payments under a spousal maintenance order, or if you are a recipient, our specialist solicitors can help you secure an agreement that allows you to move on with your life, with the lifestyle you were accustomed to during your marriage or civil partnership; whether you are at the start of separation proceedings, or years later.
At Hart Reade, each of our family law solicitors are members of Resolution. In addition, many of our team are Collaborative Lawyers. Both these organisations advocate for using non-confrontational methods for resolving family law disputes.
We can provide you with a wealth of information, advice and support regarding obtaining a spousal maintenance. To talk to any of the family law team, please call us on 01323 727 321.
Please note, this article does not constitute legal advice.