Spousal Maintenance, also known as Spousal Support is financial support which can be paid by one spouse to the other when a marriage breaks down.
There are two types of Spousal Maintenance:
An order for interim Spousal Maintenance can be made after separation before the financial side of the Divorce has been finally settled. The second type of Spousal Maintenance is an Order that can be made at the conclusion of financial matters and forms part of the final financial order.
To make an application for either type of Spousal Maintenance a Divorce application must have been commenced.
Spousal Maintenance is not statutory like child maintenance and it is not to be made in respect of child maintenance nor is there a fixed way of calculating it as there is with child maintenance.
If upon separation, before the financial aspects of your Divorce have been resolved, you have found yourself with little or no income, or your spouse is withholding monies which during the relationship they were providing to you, you may be eligible to claim interim spousal maintenance.
To be able to claim Interim Spousal Maintenance you must be able to demonstrate to the Court that you are unable to meet your basic needs due to your estranged spouse’s withdrawal of support and that your spouse has sufficient means and income to be able to support you in the interim.
Both parties will need to give a detailed breakdown of their income and their income needs. Interim Maintenance is based on basic needs and they must be reasonable. The Court will consider the application based on the basic needs of the applying party and the income and the needs of the other party. There has to be a level of proportionality, if a party is seeking interim spousal maintenance in an amount that exceeds the other parties income it is unlikely to be a successful application.
When considering your basic needs you need to be looking at essential needs, such as housing, utilities, clothing and food not a holiday allowance or social needs. It is important to prepare a MPS budget prior to the application being made.
If parties are unable to agree an interim amount between themselves, through mediation or negotiations then an application will need to be made to the Court. Since there is a Court fee to be paid it is essential that you seek legal advice to see if you have merit in your application.
Once the application has been made to the Court the matter will be listed for a hearing. If you are unsuccessful in your application and the Court decides your application is made without merit, there is a risk of a costs order being made where you may be ordered to pay the other parties legal costs of the hearing.
Costs orders are not usual in Family Law and that its why it is so important to seek legal advice before making an application in this respect.
If you are awarded Interim Spousal Maintenance it is as stated only interim or temporary. Therefore at the conclusion of financial proceedings you may need to consider an order for Spousal Maintenance payments. If you are awarded an Interim Spousal Maintenance order it does set a precedent and can assist in your chances of receiving Spousal Maintenance.
Often when considering Interim Spousal Maintenance applications people find themselves also considering Legal Services Orders. These are Orders where your spouse pays you money so you can afford legal support and representation.
Spousal Maintenance payments can be used to help achieve a fair outcome when taking into account the needs of the parties, compensation and the sharing principle.
Most cases will not allow for the parties standard of living to be maintained on divorce and it is expected that reasonable adjustments will need to be made by both parties. However in big money cases previous standard of living will be considered.
The point of Spousal Maintenance is to help achieve fairness so that one spouse does not struggle financially whilst the other faces no financial penalty from the separation.
Spousal Maintenance can also be considered when looking at the compensation aspect of the financial division. Where, for example a spouse had given up on a very lucrative career to care for the parties children, then that spouse may be entitled to an ongoing income as compensation for the loss suffered. However there would need to be near certainty that the spouse claiming would have enjoyed an income and career as great as the other spouse.
Upon Divorce it is necessary for parties to deal with the financial aspects of their relationship. To record an agreement as to finances the best way is to ensure it is legally binding. The only way an agreement is legally binding is when it is recorded by a Court Order. If parties are able to agree they can record it by way of a Consent Order. The Consent Order will be submitted to the Court for approval by a Judge. Parties may be called in for a short hearing to confirm their agreement to the Judge.
If matters cannot be agreed between the parties then the Court will decide and record the decision by way of a Court Order.
Wherever possible, the Court tries to make a ‘Clean Break’ 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. Spousal Maintenance Orders are only considered in cases where a clean break is not achievable.
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.
The court will also take into account the standard of living of the parties, any precedents set, the age of the parties and the parties earning capacity or ability to increase their income.
Where Spousal Maintenance Payments have been ordered by the Court, these will either be in the form of:
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 for the worse. A change of circumstance for the receiving party may be that they have now returned to work.
All Spouse maintenance payments end on the remarriage of the receiving party.
Spousal Maintenance Orders are good for offering one party financial protection however the negative is that they do not allow the desired ‘clean break’. The spousal maintenance order whether you are the paying or receiving party gives you continued involvement with one another which is not what people often want when divorcing. If you have children together this may not concern you as much as you are always going to have that connection.
Another risk of Spousal Maintenance Orders is that the paying party could die and payments would cease if you don’t have an appropriate insurance policy to protect this and the paying party may default on the payments and breach the order.
One possibility is to consider capitalising Spousal Maintenance payments where possible. This may mean a lump sum is received in lieu of Spousal Maintenance.
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 do not hesitate to contact us to arrange a fixed fee consultation with us as all circumstances are unique. We can then help to secure the best outcome for you.