The top ten things you need to know about spousal / civil partner maintenance
Upon a divorce or dissolution of a civil partnership, either party may seek the payment of spousal or civil partnership maintenance from the other. There is no strict formula in English law that calculates who should pay what and for how long. The amount and term of payment can therefore vary substantially from couple to couple, depending on the overall circumstances of their family finances, making this a tricky issue for couples to consider. To assist, here are our top ten things you and your ex need to know about spousal / civil partnership maintenance, including the factors that the Court will take into account when considering any such application.
1. What is spousal maintenance?
Simply put, it is the payment of money on a monthly basis that one spouse / civil partner can be ordered to pay the other by the Court. An order for spousal maintenance (or civil partnership maintenance in the event of the dissolution of a civil partnership) is therefore also referred to as a periodical payments order.
2. Is spousal maintenance the same as child maintenance?
No, it is not. Spousal maintenance is about helping to meet the income needs of the applicant spouse and is therefore different to child maintenance, which is about meeting the child or children’s income needs (although there could be some overlap in practice). Unlike spousal maintenance child maintenance is calculated using a set formula based on the paying party’s income and how many days the child stays with each parent. If an order is made for both spousal and child maintenance as part of divorce or dissolution proceedings, parties should be aware that the two types of maintenance could either be recorded as separate amounts in a Court order (ie ‘x’ for spousal maintenance and ‘y’ for child maintenance) or as one ‘global’ amount.
3. Who can apply for spousal maintenance?
Either spouse or civil partner can make a financial application upon a divorce or dissolution of a civil partnership. In addition to spousal maintenance, the applicant party could apply to the Court for a number of other financial remedies, such as transferring property between spouses, ordering the sale of a property, the payment of a lump sum or sums and pension sharing, with the overall application being considered as part of the financial proceedings.
4. Do I have to attend Court to get spousal maintenance?
If you and your spouse or civil partner have managed to agree maintenance as part of an overall financial resolution, your solicitors can draft a document known as a Consent Order which will record the financial agreements you have reached. Once the terms of the draft Consent Order are agreed and signed by both you and your spouse / civil partner, it will be sent to the Court for a Judge’s consideration. If the Consent Order is approved by the Judge, the Court will have made a final order in the terms agreed and the parties will be sent a copy of the order, without either party having had to set foot in a Court room.
5. How is spousal maintenance calculated?
Calculating spousal maintenance will require a careful balancing exercise. The Judge will look at each individual case to determine what would be appropriate in that couple’s particular circumstances, taking into account the ‘section 25 factors’. Section 25 of the Matrimonial Causes Act 1973 and Schedule 5, Part 5 to the Civil Partnership Act 2004 make it clear that the Court will first need to give consideration to the welfare of any children of the family in addition to other factors such as the income and earning capacity of both parties, each party’s financial needs, the standard of living during the marriage, the ages of the parties, the length of marriage, any physical or mental disability and any contributions made to the family.
Furthermore, the Court will also need to consider the principles of fairness, compensation and sharing, as appropriate. As each case will turn on their individual facts, it can be difficult to predict with any certainty exactly what the Court will order given that a range of options is possible. Where money is limited, the outcome must however be realistic and enable both parties’ needs to be met going forward by allowing the receiving party to adjust to life after the divorce without undue hardship. Calculating the amount of maintenance payable has therefore been described as ‘more of an art than a science’. In some cases, ‘nominal maintenance’ orders will be made whereby one party is ordered to pay a nominal amount of maintenance to the other for a certain period of time. Whilst the receiving party would not actually receive any money, it leaves the door open for them to apply back to the Court for maintenance should circumstances change during the term of that order.
6. What is a clean break?
A clean break is achieved when the parties are no longer financially tied to each other following the divorce, which means there will be no ongoing spousal maintenance or other financial obligations between the parties. It is the Court’s duty to consider if a clean break would be appropriate as part of each financial application. In bigger money cases the financially stronger party could be ordered to pay a lump sum (or ‘capitalised maintenance’) to the other party on a clean break basis as an alternative to ongoing maintenance so that both parties are able to become financially independent immediately.
7. What term might be appropriate for spousal maintenance?
In certain cases, it would not be fair or practical for there to be an immediate clean break, for example where there are limited financial resources and a significant disparity in income and / or income earning capacities, such as where one party has been out of the workforce for many years. In such cases, the Court may therefore order that spousal maintenance should be paid for a certain period of time. Depending on the circumstances of the case, this could be for a fixed but non-extendable term or a fixed but extendable term or for the duration of the parties’ joint lives (ie until one party dies or the receiving party remarries), although it should be noted that joint lives orders are now very rare. A Court could also order a ‘step-down’ in maintenance whereby the amount of maintenance would automatically be reduced after a certain amount of time, such as when the youngest child starts attending secondary school.
8. Can I get maintenance forever?
In most cases it will be appropriate for there to be a fixed term for the payment of maintenance, either linked to the ages of (and therefore responsibility for raising) children or retirement age in which case pension orders will kick in. Even with a joint lives order, maintenance will only continue until one party dies or the receiving party remarries. During its term, either party could also apply to the Court to vary the maintenance order (whether upwards or downwards) if there is a significant change in either party’s circumstances since the making of the order. This could include a change in either party’s income or assets, retirement or if the receiving party starts to cohabit with someone else.
9. Does the length of marriage impact on the spousal maintenance I might receive?
It can do. The length of marriage is one of the factors the Court will consider as part of a financial application. Although the appropriate term for any maintenance will depend on the overall circumstances of the case and the welfare of any children. Generally speaking, where the marriage is shorter the period of time maintenance will be payable for will be shorter, save where there are children to consider.
10. What is interim maintenance?
In addition to applying for spousal maintenance (which would be paid after the divorce is finalised), one party could also apply for interim spousal maintenance (also known as maintenance pending suit) to meet their immediate income needs whilst the divorce and financial proceedings are ongoing. Interim maintenance is calculated using the same balance act, albeit focused on the immediate income needs and resources of the couple.
Dealing with the finances upon a divorce or dissolution will require a carefully balanced exercise to ensure that both parties’ needs and the needs of any children of the family are met. Should you require any further advice about spousal or civil partnership maintenance, please contact our specialist family team who are more than happy to advise.