Spousal Maintenance in Divorce cases

How does the complex issue of maintenance work? The CMS usually have jurisdiction for child maintenance but what about maintenance for a spouse for themselves? The truth of the matter is that spousal maintenance, as with any financial issue arising from divorce, is complex and the ‘rules’ vary enormously from case to case.

What is spousal maintenance?

Spousal/civil partnership maintenance is income payable by one spouse/civil partner or former spouse/civil partner 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/civil partner 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/civil partner 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/civil partner 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?

How much?

The level of maintenance paid will mainly depend on the couple’s financial needs. If you enjoyed a high standard of living during the marriage or civil partnership with luxurious expenditure and there are resources available, then the ‘needs’ are likely to be more 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. It is important that your expenditure is considered in the context of your available income. Overstating your income needs should be avoided and the expenses you are claiming should be proportionate and realistic. Over egging the pudding often leads to criticism by the judge.

How long will I have to pay spousal maintenance for?

Spousal/civil partner 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. A clean break order is where no spousal/civil partner maintenance is payable.

All spousal/civil partner maintenance orders automatically end on the remarriage/civil partnership of the recipient. Conversely, the remarriage/civil partnership of the paying party will have no automatic impact on their obligation to continue to pay maintenance where an order is in existence. Significantly maintenance orders do not end automatically by law on cohabitation. Why? Cohabitation does not create a legal commitment and is simply not reviewed in the same way as a marriage or civil partnership.

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/civil partnership, standard of living, the need to house the parties, and the continued shared responsibilities relating to children.

What the above proves is that there is no hard and fast answer.

A prominent family judge, Mr Justice Mostyn, effectively set out a checklist of the factors to be considered by the court on an application for spousal/civil partner maintenance in the case of NS v SS. His guidelines are not binding but he provided a useful summary.

A spousal maintenance award is properly made where the evidence shows that choices made during the marriage have generated hard future needs on the part of the claimant. Here, the duration of the marriage and the presence of children are pivotal factors.
An award should only be made by reference to needs, save in a most exceptional case where it can be said that the sharing or compensation principle applies.
Where the needs in question are not causally connected to the marriage the award should generally be aimed at alleviating significant hardship.
In every case the court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable. A term should be considered unless the payee would be unable to adjust without undue hardship to the ending of payments. A degree of (not undue) hardship in making the transition to independence is acceptable.
If the choice between an extendable term and a joint lives order is finely balanced the statutory steer should militate in favour of the former.
The marital standard of living is relevant to the quantum of spousal maintenance but is not decisive. That standard should be carefully weighed against the desired objective of eventual independence.
The essential task of the judge is not merely to examine the individual items in the claimant’s income budget but also to stand back and to look at the global total and to ask if it represents a fair proportion of the respondent’s available income that should go to the support of the claimant.
Where the respondent’s income comprises a base salary and a discretionary bonus the claimant’s award may be equivalently partitioned, with needs of strict necessity being met from the base salary and additional, discretionary, items being met from the bonus on a capped percentage basis.
If the choice between an extendable and a non-extendable term is finely balanced the decision should normally be in favour of the economically weaker party.

If you need further guidance or support with your financial matters upon divorce please contact our family team.

Contact our family team today to schedule a consultation and take the first step toward resolution and peace of mind.

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