Spousal maintenance, as with any financial issue arising from divorce, is complex and the ‘rules’ vary enormously from case to case.
What is it?
Spousal maintenance is income payable by one spouse or former spouse to the other, in their own right and in addition to any child maintenance. It is often one of the first topics people want advice on and unsurprisingly it is very often a problematic issue in divorce and dissolution cases. That said, it is often underplayed and its significance and benefit can be minimised by the potentially paying party.
Why do I have to pay it?
Many clients find it a difficult concept to grasp that the law can order them to financially maintain their former spouse even after divorce or dissolution. In short, there is a common law duty imposed upon spouses to support each other whilst the marriage/civil partnership exists but what many people aren’t aware of is that the duty continues after separation as a result of statute.
There is no automatic entitlement to spousal maintenance on divorce or dissolution. However, legislation obliges the court to consider whether it is possible to achieve a clean break between the parties, or whether the needs of one party require maintenance to be paid by way of a ‘top up’ income from other sources to meet his or her ‘needs’. A clean break ends financial claims against one another on divorce or dissolution (save for child support).
There are many complexities involved in spousal maintenance but in essence its purpose is to meet the ongoing reasonable financial needs of the financially weaker party. Often the reality is that the marriage or civil partnership has changed the course of a person’s life. Some people may have given up a successful career to focus on bringing up the children, running the household or supporting their ambitious husband or wife. When the marriage or civil partnership then ends it is obvious that moving on, having given up their chances of a high income, is going to be extremely difficult without some sort of support or compensation.
The questions the court has to consider is how much and for how long?
The level of maintenance paid will mainly depend on the couple’s financial needs. The current trend does seem to be that a person’s needs will be generously interpreted. What should be made clear is that there is no automatic right to an equal share of income unless a person’s “needs” requires it.
As part of the disclosure process, each person must compile a schedule of their anticipated future outgoings. This will be scrutinised and it will necessitate a balancing exercise in achieving fairness. The concept of ‘need’ is not fixed in law and there is room for the exercise of discretion in the assessment of needs. It is in the assessment of need that opinions differ. So if you are separating, keep a careful note of your expenditure so you can justify it going forward.
How long will I have to pay spousal maintenance for?
Spousal maintenance can be paid for a fixed term (which might need to be extended) e.g. until the youngest child reaches 18 or for life e.g. until one or the other dies. It can even extend beyond the death of the payer if that maintenance has been secured. You can also have a nominal order, which is where nothing substantive is paid, but there is no clean break, leaving the door open for claims to be made later on. It is like a pilot light which gently burns in the background. A clean break order is where no spousal maintenance is payable.
All spousal maintenance orders automatically end on the remarriage of the recipient. Significantly they do not end automatically by law on cohabitation. Why? Cohabitation does not create a legal commitment.
Our current legislation requires that maintenance ends as soon as it is just and reasonable, and a term order i.e. one of fixed duration should be considered by the court, unless the receiving party would be unable to adjust without undue hardship to the ending of the payments.
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.