What you need to know about varying spousal maintenance

Please note that references in this article to spouse(s) also apply to former spouse(s).

What is spousal maintenance?

Spousal maintenance is a regular payment made from one spouse to the other to meet their income needs. It is usually paid on a monthly basis and for a specified time period. It can be agreed between parties or ordered by a Judge subsequent to one spouse making an application for a financial remedy order at the Court. There is no formula for calculating spousal maintenance, unlike the calculation to determine child maintenance. The Court will consider the receiving spouse’s income needs, together with the resources available to both spouses and the standard of living enjoyed during the marriage.

During the term of payment, spousal maintenance payments can be varied upwards or downwards if there has been a material change of circumstance to either the paying or receiving spouse’s financial circumstances.

If my income has reduced, can I reduce the amount of spousal maintenance I pay?

If you are the paying spouse and your income has reduced or you find yourself unemployed for a period of time then, in the first instance, it would be best to try and agree a reduction of spousal maintenance or suspension of the payments for the said period of time. You should try and agree the reduction or suspension of maintenance in writing with your spouse. The payment could then be adjusted if and when you return to your original income level. If there are any outstanding arrears they may fall due at a later date, unless you have also reached agreement with your spouse that such arrears do not need to be paid.

Do I have to make a court application to reduce spousal maintenance?

If you and your spouse cannot agree a reduction in maintenance then you will need to make an application to the Court to vary the spousal maintenance. You will be required to show the Court what the financial position was at the time the original spousal maintenance order was made and the current financial position. If your income has reduced and you do not make an application to the Court then your spouse may apply to the Court to enforce the payments.

If the receiving spouse’s income position has improved then the paying party can also apply to the Court for the maintenance to be reduced or brought to an end. It should be noted, however, that if you are the paying spouse and your income has improved then it does not mean that the Court will increase spousal maintenance, unless it is justified because your spouse cannot meet their needs.

What does the Court take into account when varying spousal maintenance?

The Court has a wide discretion and will consider a number of factors before deciding whether to vary the original Order. The Court will take into account your needs and your spouse’s needs. The Court will need to ensure that the receiving spouse can adjust without undue hardship to the end of the maintenance. The Court’s overriding objective is to find a fair result and the welfare of any minor children is a paramount consideration.

What is a clean break order?

A clean break order is where no spousal maintenance is paid. A clean break is less likely if there are minor children but each case will depend on its facts.

If there are minor children, the Court may order a nominal maintenance order in favour of one spouse instead of a clean break order. A nominal maintenance order is often granted to the lower earning spouse (and usually the primary carer of the children) and is essentially a payment of 1p per annum. In reality the payment is not made but the claims for spousal maintenance remain open. This will act as a safeguard against any significant change in circumstance in the future which may mean the receiving spouse is unable to meet their financial needs. The receiving spouse can then apply to the Court to vary the nominal order upwards.

On a variation application the Court is under a duty to consider whether there can be a capitalisation of maintenance and clean break whereby the paying spouse pays a lump sum to the receiving party instead of ongoing maintenance. The paying spouse’s financial obligation to pay spousal maintenance is then dismissed.

Can I stop spousal maintenance if my spouse is now living with someone else?

If you want to vary payments on the basis that your spouse is now living with another person, spousal maintenance will not necessarily be reduced or terminated on that basis. It will depend on the individual circumstances of the case and whether the change of circumstance causes a reduction in your spouse’s needs. If the cohabiting partner does not have a job or has a low income, then their contribution to the household income will be seen as minimal.

If you believe you should pay or receive spousal maintenance payments, or your current payments should be varied, please contact BDB Pitmans’ specialist family team.