Divorce and family law

Spousal maintenance is an arrangement where one partner to a marriage provides financial support, usually on a regular monthly basis, to the other after a separation or divorce. This maintenance is designed to help the receiving party cover their living expenses especially if there’s a significant disparity in earning capacities. It will not necessarily allow them to maintain the same standard of living as during the marriage; this will depend on the specific circumstances of the parties to the marriage.

The amount and duration of spousal maintenance depend on various factors including your needs, incomes, and potential to earn in the future. You and your ex-partner can reach an agreement voluntarily, or it can be determined by the court. It might be a monthly payment or a one-off lump sum (called capitalisation) depending on what you both agree upon or what the court orders.

Understanding your rights and the legal process regarding spousal maintenance is crucial to ensure you achieve a fair financial arrangement overall. Whether it is by agreeing amicably on the terms or seeking legal adjudication, it is important that the support provided aligns with your circumstances.

In the UK, spousal maintenance is governed by specific legislation, with courts exercising discretion to ensure just outcomes according to each party's circumstances.

Legislation and Statutory Provisions

The Matrimonial Causes Act 1973 serves as the cornerstone of the law governing financial provision on divorce in England and Wales, which includes spousal maintenance . Under this Act, you may be entitled to financial support from your former spouse if you cannot maintain yourself financially following a divorce. The court examines several factors before making a overall financial award, including:

• Your financial needs and those of your ex-spouse
• Your earning capacity
• Your respective ages and the duration of the marriage
• Any physical or mental disabilities
• Contributions to the marriage, which can include looking after the home or caring for the family

Maintenance can be awarded for a specific term or, more rarely, for life, which is known as a "joint lives order." It can be “stepped down” during the relevant period and, on some occasions, it can be “capitalised” and paid as a lump sum.

Jurisdictional Considerations

The law above only applies where you are bringing a claim in the Family Court in England and Wales.

Understanding your eligibility for spousal maintenance hinges on specific legal aspects following the breakdown of a marriage. You will need to be married (or in a civil partnership) and be able to show the relevant financial need.

Marital Status Requirements

You must be legally married or in a civil partnership to apply for spousal maintenance. Following a divorce or dissolution, you could be eligible to claim financial support if, for example, there is a disparity in earning abilities, ensuring the lower earner is not left in financial hardship.

Financial Necessities

Your financial circumstances are central to determining eligibility for spousal maintenance. If you can't meet your reasonable needs independently, you may be entitled to maintenance payments. Specifically, the focus is on whether:

• You have sufficient income to support your financial needs.
• There’s a relevant difference in earnings or income.
• You have the capability to become self-sufficient over time.

Duration of Marriage

The length of your marriage is a pertinent factor. Generally, longer marriages can result in maintenance agreements due to prolonged economic interdependence. Conversely, shorter marriages may lead to more limited maintenance terms, reflecting the shorter time of shared financial commitments but the right outcome will depend on your specific circumstances and there is no bar to a long period of maintenance just because your marriage has been short.

Determining the amount of spousal maintenance hinges on various factors that reflect the fairness and financial equity of the situation after a divorce or separation.

Income and Financial Resources

You must disclose all sources of income and financial resources when calculating spousal maintenance. This includes your salary, dividends, and any other regular income. Your assets, such as savings, investments, and property, will also be assessed. The court examines both your and your partner's financial capacities to ensure that the maintenance awarded is fair and so far as is possible meets the needs of both parties. The party seeking maintenance could be expected to use their capital to generate income in certain circumstances.

Standard of Living

The standard of living you enjoyed during your marriage can affect the maintenance calculation as this can affect where the Court assesses your financial needs. Recognising that it might not be possible to maintain an exact standard of living, the focus may be on avoiding a stark disparity in living conditions to the extent possible with the available resources, especially if there are children but the overall outcome could still mean one party has a significantly higher standard of living following the end of the relationship.

Earning Capacity and Job Prospects

Your earning capacity, along with that of your ex-spouse, plays a critical role in how maintenance payments are worked out. This refers to your ability to earn money now and in the future. Consideration is given to your age, health, and qualifications, as well as job opportunities available to you. If your ability to earn is found to be impacted, for instance, by time spent out of the workforce during the marriage, this can be factored into the final maintenance decision.

In England and Wales, spousal maintenance is categorised mainly into two types of orders: interim maintenance provided during divorce proceedings, and permanent maintenance after the divorce is finalised.

Interim Maintenance (maintenance pending suit)

You may be awarded interim maintenance to support your living expenses while your divorce is ongoing. This type of maintenance is designed to ensure that you are financially stable during the legal process but may be lower than long-term maintenance as it may exclude provision for more discretionary or one-off items.

Long-term Maintenance

Long-term maintenance comes into effect once your divorce is finalised. This maintenance can be for a fixed duration, often to allow you time to become self-sufficient, or for an indefinite period, which could potentially last for the remainder of your life, though this is very much less common in recent years.

It is possible to obtain a nominal order as a safety net, for example for £1 per annum, but with the ability to increase in the future.

Maintenance can also be index linked, or with other provision for automatic increases (or decreases).

In the event of financial changes during a period of maintenance, you may find the terms of your spousal maintenance no longer fit your circumstances. These terms can be reviewed and potentially altered to reflect your current situation.

Change in Financial Circumstances

If you experience a substantial change in financial circumstances, such as a loss of employment or a serious illness, you might be eligible to apply for a change in your spousal maintenance. You can apply to the court to review your maintenance order, and the court will consider whether the change in circumstances is significant enough to warrant an adjustment.

• Reduction in income: If you are paying maintenance and your income decreases or comes to an end, you can request a reduction in maintenance payments or for these to come to an end.
• Increase in income: Conversely, if your income increases, your ex-partner could apply for higher maintenance payments.

Remarriage or Cohabitation

Remarriage of the recipient automatically ends the obligation to pay spousal maintenance.

Death of the paying or receiving party will end the maintenance.

Cohabitation can also affect maintenance payments. If you start living with a new partner, the court may consider this when reviewing maintenance, as your financial needs may have changed. The impact of cohabitation on maintenance:

• Potential reduction: Your maintenance may be reduced if cohabitation leads to shared financial responsibilities.
• Case-by-case basis: Each situation is assessed individually, taking into account the details of your new living arrangements. Often orders for maintenance will not provide the provisions come to an end when the receiving party cohabits.

Extendable or non-extendable

Maintenance can be for a set period with the ability to extend the period (although this is difficult to do), or with a bar to the period being extendable.

When maintaining financial stability post-divorce or separation, ensuring compliance with maintenance orders is crucial. The English and Welsh legal system provides a framework for enforcement should payments not be made as directed.

Legal Remedies

If you are faced with a situation where a maintenance order is not being honoured, there are specific legal steps you can take to enforce the order. You may apply for:

• An Attachment of Earnings Order: Your ex-partner’s employer can be instructed to deduct maintenance payments directly from their wages.
• Charging Order: This secures the debt against your ex-partner’s property or assets.
• Third-party debt order: Funds are seized from your ex-partner's bank account.
• Writ of Control or Warrant of Execution: This allows a bailiff to seize and sell your ex-partner’s possessions to cover the debt.

Penalties for Non-Compliance

Not adhering to maintenance orders can result in several penalties, including:

• Interest on Arrears: If payments are missed, the owed amount can accrue interest.
• Imprisonment: the Court could be asked to consider imprisonment if there were consistent failures to comply with Court Orders.

The tax treatment of spousal maintenance can affect both the payer and the recipient, with differing implications for each party.

Payer's Perspective

If you're the one paying spousal maintenance, the payments are not tax-deductible. You will not be able to reduce your taxable income by the amount of maintenance you pay. This means the maintenance payments come from your post-tax income.

Recipient's Perspective

As the recipient of spousal maintenance, the maintenance you receive is not considered taxable income. You are not required to pay income tax on these payments, which means the full amount you receive fully contributes to your financial support.

When you face disputes regarding spousal maintenance, considering Non-Court Dispute Resolution methods such as mediation, private financial dispute resolutions, or arbitration may provide efficient and amicable solutions outside of court.

Mediation

In mediation, for example, you and your ex-partner engage with an independent third party, known as a mediator, to help you both reach a mutual agreement on maintenance payments. The mediator facilitates discussion but does not make decisions for you. This process is often less confrontational and can save you both time and money.

Benefits of Mediation:

• Cost-effective: Generally more affordable than going to court.
• Time-saving: Can be quicker than litigation.
• Confidential: Discussions are private.
• Control: You have more say in the outcome

Private Dispute Resolutions

These are similar to mediations as there is a neutral third party to assist you reach an agreement but you have the benefit of a more formal evidence process, and the support of your lawyers during it.

Arbitration

With an arbitration you have a formal process similar to a Court Hearing, but you can set the date on your own timetable, and the process can therefore be quicker and less expensive than the Court process. You will have the benefit of a final solution.

Spousal maintenance is a financial support one spouse may be required to pay to the other following the dissolution of their marriage.

Pre-Divorce Agreements

Before you proceed with your divorce, you have the option to reach a pre-divorce agreement, known as a Separation Agreement. Separation Agreements deal with how financial matters, including spousal maintenance, will be handled. You and your soon-to-be ex-partner can agree on either a lump sum or ongoing monthly payments. This part of the financial settlement is separate from child maintenance, which is specifically for any children’s living costs.

During Divorce Negotiations

During divorce negotiations, spousal maintenance often becomes a critical topic. You might need to discuss the possibility of one spouse paying the other post-divorce. This financial support intends to balance any economic disparities caused by the end of the marriage. The courts can set these payments for a defined period or, in some circumstances, for life, if one partner cannot sustain themselves without support from the other. Your solicitor can guide you through this process to establish a fair agreement.

When dealing with spousal maintenance, complications may arise if you and your former partner reside in different countries. These complexities can involve understanding international agreements and ensuring enforceability across borders.

Enforcement Across Borders

Enforcement of spousal maintenance orders across borders can be challenging, yet it's crucial for ensuring that maintenance obligations are met. Each country has its laws and procedures to register and enforce foreign maintenance orders. For instance, within the European Union (EU), the process was streamlined by regulations, but following Brexit, the UK no longer adheres to these EU-specific processes. Now, you may need to apply to the court to recognise and enforce an international maintenance order in the UK. It is important for you to consult with a legal expert specialised in international family law to navigate these processes effectively.

When a marriage ends, financial arrangements often extend into retirement, affecting both pension rights and the maintenance payments.

Pension Rights

Your pension is a significant asset in divorce or separation. Under English and Welsh law, you can be entitled to share your spouse or civil partner’s pension, with particular consideration of that value accumulated during the marriage. This division of pension rights is either through a pension sharing order, which provides a percentage of your ex-partner's pension pot to you as a pension in your own right, or an offsetting arrangement where you receive other assets worth the same as the pension share you're entitled too, depending on what's most suitable for your circumstances.

Post-Retirement Maintenance

Retirement doesn't necessarily end spousal maintenance payments. If you've been granted maintenance for life or until a significant change in circumstances, your ex-partner may still have to pay even after they retire. However, the payments can be adjusted if their income reduces upon retirement. It is important to seek legal advice as the court will consider several factors, such as your age, health, and the needs of both parties, before deciding any alteration to the maintenance award.