What is Spousal Maintenance?
Spousal Maintenance is a monthly payment from one party to the other, which continues following a divorce. It is separate to Child Maintenance.
Is Spousal Maintenance payable in all cases?
Spousal Maintenance (also referred to as Periodical Payments) is not appropriate in all cases.
In fact, the Court has a duty to consider whether it would be appropriate for the party’s financial obligations towards each other to be terminated (i.e. a clean break) – However, this is not always possible.
Whether Spousal Maintenance is payable, depends on the circumstances of your case, taking into a range of factors, such as:
- Both party’s income and earning capacity.
- Both party’s financial needs, obligations and responsibilities.
- The age of the parties.
- The duration of the marriage.
- Any disability.
In broad terms, it means considering:
- The higher earning party’s ability to pay maintenance – Looking at their income and outgoings and analysing whether there is a surplus, and
- The other party’s need – Considering whether a monthly payment is required to meet their day to day needs, but taking into account their own income.
There is an argument we all have a ‘need’ for maintenance. However, Spousal Maintenance will only be payable if it is affordable for the paying party.
This area is often one of the most contentious and problematic areas to resolve, when sorting out the finances.
How is Spousal Maintenance Calculated?
Unlike child maintenance (dealt with by the Child Maintenance Service), there is not a set formula for calculating Spousal Maintenance.
The appropriate amount of maintenance is different in every case, as it is dependent upon the overall circumstances. It is important to seek specialist advice from a family lawyer in this respect.
When does Spousal Maintenance come to an end?
The appropriate duration of Spousal Maintenance will depend on the circumstances of the case.
However, generally, Spousal Maintenance Orders will be payable for:
- Joint lives of the parties.
- A certain number of years (a term order).
- A specific event – such as a child of the family attaining a certain age or a party reaching retirement age.
Spousal Maintenance will automatically end if the person receiving the payment remarries or either party dies.
Can Spousal Maintenance be varied?
Spousal Maintenance can be varied (either upwards or downwards). This applies to the amount paid and the duration of the payment.
Spousal Maintenance may be varied if there has been a significant change in circumstances of one of the parties, since the Order was made. This may be:
- A significant increase in either party’s income.
- A significant decrease in either party’s income.
- Or a significant change in one party’s circumstances.
- Either party coming into significant capital that could be used to generate an income – such as an inheritance.
- Retirement of the paying party.
- The receiving party’s cohabitation with another person – although this will need to be carefully considered.
However, the above factors will not automatically lead to the termination or variation of Spousal Maintenance. In order to vary the Spousal Maintenance Order, an application to Court is required.
Whether a termination or variation of Spousal Maintenance is appropriate will depend on the circumstances of the case. Therefore, it is not guaranteed a variation will be achieved.
What is an extendable and non-extendable term Order?
If a Spousal Maintenance Order is extendable, it means that the party receiving the monthly payment can apply to the Court to extend the term (i.e. the length of time the maintenance is paid). However, the application to extend must be made before the end of the existing term. If no application is made, the Order will terminate on the agreed date.
In contrast, a non-extendable term order cannot be extended under any circumstances.
As you will see from the above, the quantum and duration of Spousal Maintenance will vary from case to case. It is therefore important to seek advice from a specialist family solicitor to consider whether it would be payable in your case.
At Hart Reade, all of our family law solicitors are members of Resolution, which means we are committed to resolving matters by agreement and in a non-confrontational manner.
We can provide you with a wealth of information, advice and support to assist you during what can be a difficult time. If you wish to speak to any of the family law team, please call us on 01323 727321. We have Solicitors in Eastbourne, Hailsham, Meads and Polegate.
Please note that this article does not constitute legal advice. You should always speak to a legal professional to discuss your circumstances and consider your options.