What is spousal maintenance, why do I have to pay it and for how long?
Emma Hopkins Jones
Spousal maintenance is maintenance payable by one spouse or former spouse to the other
, in their own right and in addition to any maintenance
payable for the benefit of children.
There are 4 types of spousal maintenance orders:Interim Maintenance Order
- known as Maintenance Pending Suit – This is payable by one spouse to another, whilst Proceedings to determine the outcome of the overall financial case are ongoingTerm Maintenance Order
– This is spousal maintenance paid for a defined term – this could be 1 year, 5 years, until a child has reached the age of 18, or until the receiving party starts to cohabit. The term can be extendable or non-extendableJoint Lives Maintenance Order
– Maintenance will continue until either party dies, the receiving party remarries, or the Court makes a different orderNominal Maintenance Order
– This provides that the Payer will pay the receiving party maintenance at a nominal level of £1 per year, which is not actually paid, but means that the receiving party can apply to the court for a substantive order, should the need arise. A Nominal Order can either be on a term basis or for joint lives.
There is no automatic entitlement to spousal maintenance
for either party. The court is required to consider in every case, whether it can achieve a clean break between the parties so that the financial obligations of each party towards the other come to an end.
Where both parties are working and their incomes from all sources, including benefits, tax credits and child maintenance, are relatively similar then it is unlikely the court would consider making a spousal maintenance order
. In some circumstances, one party may be awarded more of the capital
, such as the house or savings, which may then reduce their outgoings to such an extent that they cannot show a need for any maintenance from the other.
However, if there cannot be a clean break without undue hardship, then firstly the court must decide what amount it is to be. Both parties will prepare “budgets”
, a schedule of their outgoings, and if one party is able to show that there is a shortfall from their income from all sources
, then they have shown a need for maintenance. There is then the question of whether the other party has any spare income to meet that shortfall
after they have met all of their outgoings in their own budget.
The court will then look at how long that order should last
for. The need for maintenance may diminish over time and often some level of support is provided for the duration of children’s minorities. The courts in England and Wales take differing approaches as to the duration of orders for spousal maintenance, with some courts regularly making Term Orders
and other usually making Joint Lives Orders
saying that it is the payer’s responsibility to bring the matter back to court if the circumstances change in the future.
Many people say that the law as it presently stands in relation to spousal maintenance is unclear and that makes the law inaccessible and creates uncertainty
. In America the Courts are starting to apply a mathematical calculation based on the disparity of earnings
post-divorce. As with the formulaic calculation applied by the Child Support Agency
in relation to child maintenance in the United Kingdom, it provides certainty and it is easy for the parties to apply themselves. However, a formulaic system is also inflexible and does not allow a court to look at family’s individual circumstances
as a whole.
The Law Commission is consulting on reform to the law in this area and the consultation period is open until 11 December 2012
. A full copy of the consultation paper can be found at the Law Commission website http://lawcommission.justice.gov.uk/consultations/matrimonial_property.htm