Published: 20th April 2016
Not to be confused with child maintenance, spousal maintenance is an income claim that can be made in addition to capital and pension claims upon divorce. It is paid by a wife or a husband to their former spouse, usually monthly, to enable them to meet their day-to-day needs, and is particularly likely to arise if one party has a lower income (or no income at all).
There is no formula for working out exactly how much spousal maintenance is payable, it is dependent on needs and affordability: the payer must be able to afford to pay and the needs of the payee must be reasonable (although needs can be generously interpreted). Other factors to consider include the assets available, the standard of living enjoyed during the marriage and the welfare of any children of the family, which is the Court’s paramount consideration.
The existence of spousal maintenance provision within a Court Order means that spouses remain tied to each other financially. Although the Courts prefer, and have a duty to dismiss financial obligations between spouses as soon as possible, known as a clean break, this is not always possible.
Spousal maintenance can be paid for a defined period (term order) or for the remainder of the parties’ lives (joint lives order). The idea of a term order is to allow the payee to move towards financial independence, e.g. to retrain or enter the workplace once child care responsibilities reduce. Where there is little likelihood of a payee becoming financially independent, a joint lives order may be relevant.
Spousal maintenance can also be “capitalised” – meaning a lump sum payment is made in lieu of ongoing maintenance, allowing a clean break to be achieved.
During the term of payment, either party can make an application to the Court to adjust spousal maintenance. If the payee has a change in circumstances, e.g. a job that allows him/her to meet his/her needs without the spousal maintenance, the payer can make an application to vary the order. Conversely, if the payer has a change of circumstances, e.g. loss of a job that means they cannot afford to make the payments, they can make an application to vary the payments downwards. The Court also has the power to end the payments altogether.
The payment of spousal maintenance ends at the expiry of the term or the remarriage of the payee, or on the death of either the payee or the payer. Payment can also end, or reduce, in the event that the payee starts cohabiting with a new partner, however this is usually only possible if it has been provided for in a Court Order.
Spousal maintenance and financial obligations after divorce or separation can be complicated and getting professional advice is essential.
The specialist family team at K J Smith Solicitors can offer you expert advice about your specific situation. To arrange a free 45 minute consultation please contact K J Smith Solicitors today on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor), 01256 584000 (Basingstoke) or 01483 370100 (Guildford).
This article was written by Olive Gathoni.
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