Spousal Maintenance Rules

spousal maintenance

IN THIS ARTICLE

When a married couple or civil partners separate, it is not uncommon for the financially weaker spouse or partner to seek regular payments from their ex to help with living costs.

The following comprehensive guide to spousal maintenance for separating couples looks at the key aspects of this form of financial arrangement, from what this is and who is entitled to this type of maintenance, to whether someone can stop paying spousal maintenance.

What is spousal maintenance?

Spousal maintenance refers to regular, periodic payments from the wealthier spouse or civil partner to their ex, to help financially support that person after they have separated. This financial arrangement can be put in place by way of an agreement between a separating couple or imposed by the court in the context of divorce or dissolution proceedings.

Where the court orders that the spouse or partner on a higher income makes these types of payments, this is referred to as a ‘spousal maintenance order’. This is entirely separate to child maintenance which is usually arranged via the Child Maintenance Service.

Who is entitled to spousal maintenance?

Separating from a spouse or civil partner can have a significant impact on a person’s finances, especially if they relied heavily on the income of their former husband, wife or partner. This is often where, for example, one spouse was the primary earner and the other stayed at home or worked part-time to enable them to look after any children.

However, regardless of the reason for any difference in income during the relationship, if a marriage or civil partnership ends, the financially weaker party to that marriage or partnership can ask for financial support, known as spousal maintenance, from their ex-partner. This is in addition to any child maintenance that their ex might have to pay.

Spousal maintenance is therefore typically paid when one ex spouse cannot afford to support themselves financially following a divorce. It could be that this period of financial instability is only temporary, perhaps during and immediately after the divorce proceedings, or it could be an ongoing situation.

How much is spousal maintenance?

If a separating couple is looking to reach an agreement as to spousal maintenance without recourse to the courts, it is entirely at their discretion to decide what is fair based on, for example, how much the financially weaker spouse or civil partner needs to live on, how much income they already have and how much they could potentially earn in the future.

Having agreed a reasonable figure by way of spousal maintenance, this should be recorded in writing, documenting how much the payment is each month and how long the payments will last. This could be for a specified period of time or, alternatively, until the receiving party re-marries, enters into a new civil partnership or even moves in with a new partner. Where the arrangement is voluntary, it is up to the parties to decide the amount, the term and any conditions that may be attached to the agreement to pay maintenance.

In the event that the court is asked to make a decision around a former couple’s finances, including the making of a spousal maintenance order, the parties will first be asked to provide full disclosure of their respective financial worth, including their income and expenditure, so that the judge can assess what is fair and reasonable in all the circumstances. Based on this information, and provided the court decides that spousal maintenance is appropriate, the amount and length of maintenance will also be assessed.

Generally, the party claiming spousal maintenance will be required to demonstrate their need for financial support is a direct result of choices made during the marriage, for instance, whether giving up a career to bring up children which in turn led to all financial holdings being in the name of the ex spouse only.

There is no set formula for calculating spousal maintenance, where each case is different. As such, the amount can vary significantly from case to case depending on the facts. If it has been an especially long marriage or civil partnership and one of the couple has given up work to care for any children, the court’s approach will be very different from where the marriage has been short and both parties have retained their careers.

How is spousal maintenance calculated?

There is no specific formula for calculating spousal maintenance payment amounts. The decision is at the discretion of the courts and it is therefore important that each spouse fully demonstrates their financial situation to the satisfaction of the courts.

Spousal maintenance is calculated looking at factors including, but not limited to:

  • how much money the partner needs to live on
  • how much money the spouse who will be making the payments needs to live on
  • the current, ongoing and potential income of both spouses
  • the standard of living both spouses experienced during the marriage
  • how long the marriage lasted
  • whether there are children involved and what is best for them
  • each spouses’ financial commitments
  • any pension provisions
  • both spouses’ ages
  • whether either spouse requires ongoing medical treatment or have a disability
  • what each spouse has contributed to the marriage and the welfare of the family, not simply financial contributions but also factors such as time taken to look after children or maintain the marital home
  • spousal conduct, especially conduct that may have led to one spouse being at a financial disadvantage as a result of the end of the marriage
  • that the payments are to meet needs, rather than to act as compensation
  • how long the spousal maintenance should last dependent on how soon each spouse can become financially independent
  • whether the spousal maintenance is on an extendable basis (where the arrangement could end when the ex spouse receiving payment achieves financial independence) or on a joint lives basis (generally until one spouse dies)
  • whether there is a prenuptial agreement

 

How to claim spousal maintenance

An arrangement for spousal maintenance can be put in place as soon as a couple separate, even prior to starting divorce or dissolution proceedings, provided the parties can agree. This is known as a voluntary arrangement. If a couple is struggling to agree to spousal maintenance by themselves, or the amount of maintenance to be paid by one to the other, they may be able to reach an agreement through mediation. This is where a trained and neutral third party can help the couple to negotiate a financial settlement agreement on mutually agreeable terms, including provision for spousal maintenance, where appropriate.

However, where an agreement cannot be reached, the person seeking spousal maintenance would need to apply to the court for a financial order. A financial order is where the court decides how the matrimonial or civil partnership pot will be split, including whether it is appropriate to grant regular and ongoing maintenance payments and, if so, how much.

Importantly, an application for a financial order can only be made once the court has granted a conditional order to get divorced or dissolve the civil partnership, although ideally prior to the final order, as waiting until after can affect what a party may be entitled to. Even though engaging in mediation is not mandatory in the context of divorce or dissolution proceedings, the applicant must also normally attend a ‘mediation information and assessment meeting’ (MIAM) before filing for a financial order. This is to demonstrate to the court that consideration has at least been given to the benefits of mediation.

Is there a deadline to apply for spousal maintenance?

Spousal maintenance should usually be considered as one of the elements of the divorce settlement. Even if the parties do not believe maintenance is necessary at the time of separation, it is always recommended to take legal advice on the options and implications relating to financial arrangements.

A claim for spousal maintenance can be made at any time, either during divorce proceedings, or even years after the divorce if a financial arrangements order has not already been agreed.

The exception to making a claim for spousal maintenance after the divorce is where the divorce settlement and division of finances is made legally binding in court.

Is spousal maintenance guaranteed?

In circumstances where a separating couple have been unable to agree how to divide their marital or partnership assets and money, and an application is made to the court for a financial order, the court may decide to include within that order provision for spousal maintenance. As such, maintenance may be awarded if one party needs financial support from the other, although there is no guarantee that the court will make this order.

When deciding on whether or not to impose a spousal maintenance order, as with any other provisions relating to the property and finances from a marriage or civil partnership, this will be in the exercise of the court’s discretion. In reaching a decision, the court will have regard to a number of relevant factors, including: the length of the couple’s marriage or civil partnership; their respective ages; their current and projected incomes; any assets and division of capital; each party’s existing and future needs, including who is looking after any dependent children; whether both parties can manage financially without spousal maintenance; and the standard of living enjoyed while the couple were still together.

What is a nominal maintenance order?

A nominal maintenance order is an order for spousal maintenance at a nominal amount, typically 5 pence per year, which is an order in name only. As such, no payments would be made under this type of order, where this is simply designed to keep a financial claim open. In this way, nominal maintenance orders provide an important safety net for the receiving party in the event of any significant change in circumstances, enabling that person to apply to the court at a later date for maintenance to be increased to a substantive amount.

Nominal maintenance orders are usually made where there are young children to the marriage or civil partnership, but each party is able to financially support themselves for the time being. While it would not be appropriate to order spousal maintenance at that point in time, the recipient would still have the option to go back to court if their circumstances changed in the future, such as if they could no longer work due to either illness or redundancy. This type of order could also be made to guard against any alleged risk that the wealthier party had artificially reduced their income for the purposes of financial proceedings, where their income is likely to increase on conclusion of the case.

How long does spousal maintenance last?

The number of years that spousal maintenance can last may vary depending on the individual circumstances of each case. There is again no set formula to work out how long spousal maintenance should last, although it will be a matter for agreement in the context of any voluntary arrangement.

Where a couple have been together for over five years, spousal maintenance can last for life. This arrangement would be on a joint lives basis and would generally last until either spouse dies.

For example, spousal maintenance could stop when the agreed period of spousal maintenance payments comes to an end. Or, it could last until one spouse remarries or enters a civil partnership.

Where the spouse simply cohabits with a new partner, their ex spouse may be able to apply for a reduction in the amount of spousal maintenance.

Alternatively, as the receiver of spousal maintenance, where the income aside from the maintenance payments increases to meet financial needs, the ex spouse could challenge the payment of spousal maintenance.

If the court is asked to make a maintenance order, this may be for a specified number of years. This is referred to as a ‘term order’, where these types of orders are usually made in cases involving short marriages and/or where the receiving party is expected to re-enter the workplace and become financially independent after a certain period of time.

Alternatively, the court could make an order for spousal maintenance to be paid until the receiving party is able to draw any pension, or even an order for payment of maintenance on a ‘joint lives’ basis. This means either until the person paying maintenance or the one receiving it dies, although such orders are increasingly rare and reserved for cases where a couple has been together for a really long time or where an ex-partner is unable to work.

Is spousal maintenance a lump sum or ongoing payments?

Spousal maintenance, whether by voluntary arrangement or court order, is typically by way of regular and ongoing payments. However, where the financially stronger party would prefer to end all financial ties, they may seek to capitalise the maintenance payments potentially due. This means that instead of paying a monthly amount, they would pay a lump sum as part of the overall financial settlement, in this way achieving a clean break. However, this clean break can only be enforced by the use of a court order to make the divorce settlement legally binding.

Agreeing to a lump sum does not necessarily mean receiving the total amount in one payment. It may be paid in instalments at pre-agreed stages in the divorce process and after.

A lump sum arrangement can only realistically occur if there is enough money to effectively “buy out” the spousal maintenance claim. Still, this option can be beneficial to both parties. For the paying party, for example, this can guard against increased payments if they anticipate a rise in their income in the future or, for the receiving party, this provides the certainty of a large upfront payment, rather than being reliant on monthly payments.

When does spousal maintenance end?

Spousal maintenance is rarely indefinite where, at the very least, this will come to an end if the person in receipt of these payments gets married again or enters into a new civil partnership. The spousal maintenance order may also be a fixed term order, where the entitlement to maintenance will end after a set number of years. For example, a wife could agree or be ordered to pay her former husband £500 per month for a period of just 3 years.

Additionally, a spousal maintenance order can be brought to an end if an application is made to the court for the order to be terminated due to a change in circumstances. This could include, for example, where the receiving party moves in with a new partner without marrying or entering a civil partnership, but where the paying party could use this as a reason to apply to the courts to get the amount reduced or stopped altogether.

Can the amount of spousal maintenance be altered?

In the context of a voluntary maintenance arrangement, it is open to the parties to renegotiate the terms of any agreement. Equally, when it comes to court-ordered spousal maintenance, either party can apply to the court to reduce or increase the amount.

However, an application to vary an order will only usually be granted if there is sufficient proof that circumstances have changed. This could be where, for example, the paying party’s income has significantly reduced because they have lost their job. It could also be where the recipient’s financial needs have changed and/or their income has increased, such as moving in with a new partner, so they no longer need as much maintenance as before.

The amount of spousal maintenance arranged at the time of your divorce is calculated based on your needs at that point.

It is therefore perfectly acceptable for either ex spouse to later apply to court for the spousal maintenance amount to be re-assessed should either of you feel that your personal circumstances have sufficiently changed.

Reasons for requesting the amount of spousal maintenance to be altered include, but are not limited to:

  • where you are finding it difficult to manage on the current spousal maintenance payments
  • where your ex spouse’s income has increased by a large amount
  • where the income of the ex spouse making the payments reduces significantly
  • where you live with a new partner, but don’t enter into a marriage or civil partnership with them

Where the financial situation of the ex spouse who is making the payments improves, it may be possible to replace the spousal maintenance payments with a lump sum, hence leading to a clean break where the two of you have no further ties to each other’s finances. The spousal maintenance payments would stop at that point.

Does spousal maintenance continue if an ex has a new partner?

If the person in receipt of spousal maintenance meets someone new, this does not usually, of itself, automatically end their entitlement to maintenance. However, some couples may have an arrangement in place with a condition attached that if at any time the receiving party moves in with a new partner, the payments of spousal maintenance will cease.

It is also open to the paying party to seek to renegotiate reduced payments or ask the court to revisit the terms of the order to take account of this change in circumstances.

Can someone stop paying spousal maintenance?

Once spousal maintenance has been established by way of court order, the payer cannot usually stop the payments until the agreed period of maintenance payments is over. If someone stops paying spousal maintenance in these circumstances, the other party can apply to the court to enforce this order. However, a spousal maintenance arrangement will only be enforceable if this was an arrangement originally ordered or approved by the court.

In cases where the parties have reached a voluntary arrangement, even if this is in writing, unless it has been approved by the court then this will be unenforceable. As such, if a separating couple reach an agreement for spousal maintenance, either between themselves, via a solicitor or through mediation, this must be carefully documented and put before the court by way of a draft consent order for approval by a judge. This applies to any agreement reached between the parties around matrimonial or partnership finances, which can be approved once the court has granted a conditional order on divorce or dissolution.

How is spousal maintenance different to child maintenance?

Spousal maintenance is an arrangement between two ex spouses to financially support the needs of one of them.

By comparison, child maintenance comes into effect when a couple have children under 18 years old. Payment is made by the non resident parent to the parent with whom the child lives for the upkeep and benefit of the child.

Spousal maintenance FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Author

Spousal Maintenance Rules 1

Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.

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