Spousal Maintenance Explained
21 November 2019
By Trainee Solicitor, Helen Savage
A Spousal Maintenance Order sets out details of any financial provision that one spouse will pay to the other after they get a divorce. In this article, we explain what Spousal Maintenance Orders are, the different types that are available and how they work.
What is a Spousal Maintenance Order?
A Spousal Maintenance Order (also known as a Periodical Payments Order) is a Court Order that requires one spouse to pay the other a sum of money, usually on a monthly basis. Often this is because one spouse is financially weaker than the other, and so requires ongoing financial support after the divorce.
During a divorce either spouse is able to make a financial application to the Court for a Spousal Maintenance Order. The Court will then review the application and consider the circumstances before deciding whether or not to grant the Order.
Types of Spousal Maintenance Order
There are several different types of Spousal Maintenance Order that the Court can make. These are as follows...
1. Joint Lives Order
With a Joint Lives Order, one person pays spousal maintenance to the other until either the recipient's death or the recipient's remarriage. This is generally appropriate where there has been a long marriage, especially when there is a significant disparity between the couple's incomes. This may also apply if one person has been heavily financially dependent on the other during the marriage and may have limited employment prospects as a result.
2. Spousal Maintenance for a Fixed Period
The Court can order that spousal maintenance is paid for a fixed, non-extendable period of time, or for a fixed period of time that can be extended if an application is made before the end of the term.
3. Clean Break Order
The Court may order an immediate clean break and dismiss maintenance claims if they feel that a Spousal Maintenance Order would not be appropriate. A Clean Break Order ends the couple's financial ties altogether. The Court has a duty to consider whether it would be appropriate to terminate the couple's financial obligations to one another. This may be appropriate if both people earn a similar amount, or if the marriage was short.
4. Nominal Sum
The Court can make a Spousal Maintenance Order for a nominal sum, which will usually be for a specified period of time but could be for joint lives. The purpose of this is to give the recipient the opportunity to apply for an increase to the payments if necessary. This may be appropriate where a Clean Break Order is not appropriate at the time, for example if there are young children from the marriage.
5. Lump Sum Payment
The Court can also order that one person pay the other a one-off lump sum payment in lieu of ongoing maintenance, and dismiss the maintenance application. This is known as capitalisation and this would also achieve a clean break between the couple.
6. Interim Maintenance Order
It's possible for either spouse to apply to the Court for an Interim Maintenance Order whilst the financial proceedings are ongoing. This is called 'maintenance pending suit.' In an application for maintenance pending suit, the Court will solely concentrate on a person's immediate needs. An application for maintenance pending suit can also include a request for a Legal Services Order, which means the other person will cover the applicant's legal costs.
Calculating Spousal Maintenance
How much maintenance a spouse will receive is calculated by balancing the income and earning capacity of each person against their needs, taking into account their circumstances.
The Court will consider the following:
- The welfare of any children involved (this will always be the Court's primary consideration).
- The income and earning capacity of each person, or what this would look like in the foreseeable future.
- The financial needs, obligations and responsibilities that each person has, or is likely to have in the foreseeable future.
- The standard of living enjoyed by the family during the marriage.
- The age of both people and the duration of the marriage.
- Any physical or mental disability of either person.
- Contributions made (or likely to be made in the foreseeable future) to the welfare of the family, including non-financial contributions.
- The conduct of either person may be considered in certain situations, although it is very rare. The Court will only consider conduct that it believes it would be unfair to disregard. The reason for the breakdown of the marriage will not usually be considered a conduct issue.
- Finally, the Court will consider the value of any benefit that one person may lose as a result of the breakdown of the marriage.
At Co-op Legal Services, our Family Law Solicitors can provide comprehensive advice and guidance on all of the options we have set out here. We can advise you on the most appropriate course of action to take and support you through the process, liaising with the Court and drafting the application on your behalf.