When a couple divorces, one party may sometimes be ordered to pay spousal maintenance to the other party. However, this is not always automatic, and the court will need to assess the financial ‘needs’ of the claiming party against the ability of the paying party to afford to be able to contribute to those needs. It will be assessed on a case-by-case basis and the emphasis is on both parties becoming financially independent.
The issue of maintenance is fairly complex, and the court will take several factors into account when deciding if it should be paid and how much it should be.
As noted above, spousal maintenance is separate from any child maintenance that is paid and often parties will look at the child maintenance service website to calculate what those payments will be.
Why might spousal maintenance be payable?
There is no automatic right to maintenance, but the court will need to consider the reasonable financial needs of the parties. The financial needs of the paying party will also be taken into account.
This means that if one party is in a better place financially than the other, they may be required to make regular payments to ensure that their former spouse has their reasonable ongoing financial needs taken care of.
What will the court consider in deciding how much should be paid?
Where one party has given up their career or opportunities for advancement to raise the children of the marriage and it has left them in a financially weaker position, the court may take this into account.
The court will also look at the standard of living during the marriage when considering the amount of any maintenance, although this will be balanced with the aim of encouraging independence.
Both parties will need to disclose all of their financial assets and also draw up a schedule of their anticipated future expenditure. The court will attempt to achieve fairness for both parties in making its award.
How long will maintenance be payable for?
The court will look to make an order that allows the lower income party to become independent as soon as is just and reasonable. This could mean maintenance for between two and five years for example, and is known as a fixed term order, or there could be stepped reductions.
Even if there is some hardship in transferring to financial independence, this is considered preferable to long term maintenance. However, if the person receiving payments would suffer undue hardship if they ended, the court will consider continuing maintenance. This could occur if one party had not worked for many years because they were raising the children of the family, and the court might in this case make an order providing maintenance for life, known as a lifetime order (although these are increasingly rare, especially when pensions are involved.
Both parties have an ongoing duty to inform each other of any substantial change in their financial or other circumstances. They can also apply to the court to vary the maintenance order if there is a change in the funds they have available.
Maintenance payments will ordinarily end if the party receiving funding remarries.
If you are going through a divorce or separation and you would like to speak to one of our expert family lawyers, ring us on 01252733770 or email us at firstname.lastname@example.org.
This information is for guidance only and should not be regarded as a substitute for taking full legal advice on specific facts and circumstances.