This article will help you understand the issue of spousal maintenance, but is no substitute for getting the right advice from a specialised lawyer, since each case is unique, and the outcome will therefore depend on the circumstances of your individual situation.
What is spousal maintenance?
Spousal maintenance is a regular ‘income’ that is paid by one party to the other, either during or following a divorce. Spousal maintenance is not intended to cover the costs associated with raising children. It is the money paid by a husband or wife to their former spouse following separation to assist with living costs and other needs.
Interim Maintenance (also known as Maintenance Pending Suit) may be payable whilst the financial issues arising from the separation are being resolved, effectively to enable one spouse to “keep their head above water”.
In limited circumstances, the court may also order one spouse to pay an element of maintenance to assist the other spouse with their legal costs (known as a Legal Services Payment Order).
Longer term maintenance may be ordered as part of the overall settlement. Usually this will be for a fixed period, for example, until the person receiving the payment has had time to get back on their feet. There is an expectation that, where possible, spouses should achieve independence after divorce.
The divorcing couple may be able to agree their own financial arrangements however, if not, one of the parties can choose to apply to the court for spousal maintenance. In England and Wales there is no prescribed formula for calculating the amount that one party should pay to the other. Instead, the court will decide an amount that should reasonably cover the needs of the relevant party.
Can I claim spousal maintenance?
Spousal maintenance is only available to people who have been married; there is no claim for spousal maintenance if you have cohabited but never married.
Even in the case of a married couple, there is no automatic entitlement to spousal maintenance. Whether or not you can claim spousal maintenance will depend on all the facts of the case and will largely depend on:
- Whether your own income from other sources such as salary or state benefits is sufficient to meet your needs; and
- Whether the other spouse has a surplus income after meeting their own needs.
The courts over the years have become less inclined to order spousal maintenance, instead preferring there to be a clean break between the parties’ finances, wherever possible. However, the courts do still retain the power to order maintenance in cases where a clean break would cause undue hardship to one of the spouses. It may still be appropriate if your earnings, or capacity for earning, are significantly lower than that of your former spouse, for example, where you have given up your job or taken a career break to raise children and your prospects of returning to the job market will be limited, compared to your former spouse whose career has not been interrupted.
Will I need to pay spousal maintenance?
Your spouse has no right to claim a share of your income in the future. Maintenance orders are only made where they are required to meet needs.
You will only be required to pay spousal maintenance if there is a large disparity in income between you and your former spouse, and if you have the means to pay maintenance on top of your own living costs. The length of time you would be ordered to pay maintenance will depend on how long the court believe it will be until your spouse will be in a financial position to meet their needs from their own income.
In order to consider whether, and how much, maintenance is to be paid, the courts would consider evidence from each of you on your income and your needs. Income is not limited to salary but will include, for example, profit from property, investments, inheritance and so on. You will also be asked about your outgoings, therefore careful consideration of what might be included in your monthly budget is vital. Spousal maintenance can be reviewed at any time, and can be revised up and down, depending on the two parties’ current financial circumstances.
Conclusion
Spousal maintenance is not automatic upon divorce and must be applied for separately as part of the financial proceedings. Each case turns on its on individual circumstances, so bespoke advice on your situation is advisable.
If you or someone you know wants more information or needs help or advice, please contact us on 01785 336617 or email [email protected].