What is Spousal Support?

spousal support

Spousal Support (known as Spousal Maintenance) is financial support which is paid on breakdown of a marriage from one spouse to another.

There are two different types of Spousal Maintenance Orders:

  1. An Order for interim payments which can be made after separation but prior to finalising of a divorce (before the financial matters have been concluded).
  2. The second type of maintenance is ordered as part of the financial settlement Order (at the conclusion of the financial matters).

Please be aware that:

  • In order to make a claim for either type of maintenance, you or your ex-partner must already have issued divorce proceedings.
  • Unlike Child Maintenance, Spousal Maintenance is not statutory.

Interim Spousal Maintenance

Following a separation, but before divorce, you may find yourself with little or no income whilst the financial aspects of the separation are determined.  In cases such as this, you may be eligible to claim interim Spousal Maintenance Payments (also known as Maintenance Pending Suit) from your ex-partner.

To be eligible to claim for Interim Spousal Maintenance you must be able to show to the Court that you are unable to meet your basic needs and that your ex-partner has sufficient means to support you in the interim.

It is important to seek legal advice before considering an application for Interim Spousal Maintenance as the Court will require both parties to provide a detailed breakdown of their income and their income needs. The application is assessed on your basic needs only, such as whether you are able to afford housing, clothing and food. It is also balanced with the income and needs of the other party.

There will be a hearing in relation to the application and a Judge will decide whether or not to grant an order for Interim Maintenance. If a Judge considers that the application is without merit, they may order you to pay the other parties legal costs for the hearing.

This type of application is one of the few applications within family law where costs against you may be considered, which is why it is so important that you seek legal advice regarding your position before considering making an application.

Spousal Maintenance

When parties divorce it is necessary to sort out the financial aspects of their relationship.  If matters can be agreed, a Consent Order can be submitted to the Court setting out the agreement for a Judge’s approval. Where matters cannot be agreed between the parties, it may be necessary to make an application to the court to consider how best to sort out the finances of the parties.

Wherever possible, the Court tries to make a ‘clean break’ Consent Order. This means that all of the financial matters are decided and each of the parties walk away with a clean break and there are no future payments made to either party.

In some cases it is not possible to make a clean break between the parties as it may be that one party would have insufficient income to either meet their needs or to match the reasonable lifestyle that they had with the other party prior to separation.  In this case a Court may consider making a Spousal Maintenance Order.

After hearing about the financial positions of both of the parties, the Court can decide the amount (if any) that needs to be paid, how often it should be paid and for how long.  Before coming to a decision, the Court will consider the paying party’s ability to pay and the receiving party’s lifestyle before and after the separation. A Spousal Maintenance Order will normally only be considered in those cases where there has been a long marriage.

Where Spousal Maintenance Payments have been ordered by the Court, these will either be in the form of:

  • A Lifetime Order – This is also known as a ‘Joint Lives Order’. This may be granted where there has been a long marriage and/or where there is a big difference in the income/earning capacity of the parties and/or the parties are older in years.
  • A Fixed Term OrderWith this type of Order payments are to be made for a set number of years or until a certain date when circumstances change. This type of order is usually granted where as a result of children of the family, the mother has not been able to work and/or a party needs a period of adjustment to retrain or to adjust their earning capacity.

Where Spousal Maintenance Payments have been ordered, the paying party can apply to vary this at any time should there be a significant change of circumstance for either party.  A change of circumstance for the paying party may be that their financial situation has changed.  A change of circumstance for the receiving party may be that they have now remarried.

Please be aware that the Courts will always try to obtain a clean break for the parties and Spousal Maintenance Orders are only considered in cases where that is not achievable.

Whether you are the paying party,  the receiving party, or simply need to understand your position, we can advise you and guide you through this difficult time.

Please arrange a consultation with us as all circumstances are unique.  We can then help to secure the best outcome for you.

 

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