Spousal Maintenance

What Spousal Maintenance Is

Spousal maintenance is a periodical payments order under section 23(1)(a) of the Matrimonial Causes Act 1973, or a secured periodical payments order under section 23(1)(b). GOV.UK calls it a maintenance order: the court tells the person with the higher income to make regular payments towards the other's living costs, for a limited period or for longer.

It is open only to people who are or were married or in a civil partnership, so partners who never married cannot claim maintenance for themselves: see unmarried couples and cohabitation. Paragraph 2(1) of Schedule 5 to the Civil Partnership Act 2004 gives the court the same powers on dissolution of a civil partnership. Maintenance is one part of the wider financial settlement.

It is not child maintenance, which section 8 of the Child Support Act 1991 largely reserves to the Child Maintenance Service: see child maintenance advice. A final financial order cannot take effect until the divorce order has been made final, and section 28(1) stops the term beginning before the date of the application. Where money is needed sooner, section 22 allows maintenance pending suit until the suit is determined, and section 22ZA a payment towards legal services.

How the Court Decides Amount and Term

There is no formula. Section 25 of the Matrimonial Causes Act 1973 requires the court to weigh all the circumstances, with first consideration to the welfare of any child of the family under 18:

• income, earning capacity, property and other resources, now and in the foreseeable future
• the financial needs, obligations and responsibilities of each of you
• the standard of living before the marriage broke down
• your ages and the length of the marriage
• any physical or mental disability
• contributions to the welfare of the family, including caring for the home and children
• conduct, where it would be inequitable to disregard it
• any benefit, such as a pension, either of you will lose the chance of acquiring because the marriage has ended

Section 25A adds a duty. After a divorce or nullity order the court must consider whether your obligations to each other can end as soon as is just and reasonable and, if it orders maintenance, whether the term need only be long enough for the receiving party to adjust without undue hardship. Schedule 5 to the Civil Partnership Act 2004 says the same at paragraph 23; see clean break orders.

In SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam) the court held at paragraph 46 that an award meets hard future needs generated by the marriage, that the marital standard of living is relevant to the amount but not decisive, and that where the choice between an extendable term and a joint lives order, which has no end date, is finely balanced the statutory steer favours the term. Waggott v Waggott [2018] EWCA Civ 727 confirms that an earning capacity is not a matrimonial asset the sharing principle divides, so a maintenance claim is normally measured by need.

Evidence and Common Problems

Maintenance is argued on figures, so in court proceedings both of you must set out your finances in a financial statement verified by a statement of truth, Form E in the standard procedure, and file it before the first appointment. The arguments then turn on practical problems:

• a budget that cannot be evidenced, or one built on the old standard of living
• variable pay: SS v NS contemplates base needs met from salary and discretionary items from a capped percentage of a bonus
• earning capacity: what the receiving party could reasonably earn, and by when
• income that runs through a company or a trust: see hidden assets and non-disclosure
• housing on both sides, including whether either of you can raise a mortgage
• arrears: under section 32, arrears more than twelve months old need the permission of the court to enforce, and can be remitted

Pension income belongs in the same conversation, because a pension sharing order can reduce the need for maintenance in later life: see pensions on divorce.

How the Maintenance Process Works

1. We start with the figures: income on both sides, a budget you can stand behind and any immediate shortfall.
2. Both of you disclose your finances in full, and where money is needed before the case ends we apply for maintenance pending suit under section 22, or a legal services payment order under section 22ZA.
3. We advise on the amount, whether a term or a longer order fits, and whether the term should be extendable.
4. We negotiate in correspondence, at a round table or through family mediation.
5. Agreed terms go into a consent order with a statement of information. The court cannot approve one before the conditional order, and a judge approves it if satisfied that it is fair. A meeting about mediation is not needed for an agreed consent order.
6. If you cannot agree, you must first attend a meeting about mediation, apart from exempt cases such as domestic abuse: see MIAM advice. The application then goes in on Form A and follows financial remedy proceedings. Where the only remedy sought is periodical payments, rule 9.9B applies the fast track instead, as it does to most variation applications.

Court fees apply and they change, so we work from the published list rather than quoting figures: the fees and the help with fees scheme are on the GOV.UK court and tribunal fees page.

Changing or Ending a Maintenance Order

Either of you can apply under section 31 to vary, suspend or discharge a maintenance order. The court weighs all the circumstances, including any change since the order, such as a job loss or much better paid work, with first consideration to the welfare of any child under 18, and, for an order made on or after a divorce or nullity order, must consider whether payments should now run only for a further period sufficient to adjust without undue hardship.

Where the court discharges maintenance ordered after a divorce or nullity order, or varies it to a limited further period, section 31(7A) and (7B) let it add a lump sum, property adjustment orders or a pension sharing order and bar any further application. That is how an order is capitalised.

Some endings are automatic. For an order made on or after the divorce or nullity order, section 28(1) stops the term running beyond the receiving party's remarriage or new civil partnership, and beyond the death of either of you, or of the receiving party alone where the payments are secured. Paragraph 47 of Schedule 5 to the Civil Partnership Act 2004 mirrors this for civil partners.

Where the term is fixed, the court can direct under section 28(1A) that it may not be extended. Without that direction an extension can be sought under section 31, but the application has to be made while the order is still running: once the term has ended there is no order left to vary. See also variation of financial orders and enforcement of financial orders.

When Legal Advice Is Especially Important

Advice is worth most before anything is signed or filed, particularly where:

• a clean break is offered and you need to know what giving up maintenance is worth
• the paying party's income is variable, or comes from a business rather than a payslip
• a fixed term is proposed with a section 28(1A) direction against extension, or capitalisation is on the table and the lump sum has to last
• you have been out of work for years, or you care for a disabled child
• one of you lives abroad, or the assets do: see financial claims after an overseas divorce
• you are asked to sign a separation agreement, or a prenuptial or postnuptial agreement deals with maintenance

If you are frightened of your former partner, the police can be called on 999 in immediate danger and the National Domestic Abuse Helpline is 0808 2000 247.

How RakLAW Solicitors Can Help

Our spousal maintenance solicitors work from 42 Shad Thames in Southwark, a short walk from Tower Bridge, with Tower Hill, London Bridge and Bermondsey the nearest stations. The first 15 minutes are free, which is usually enough to say whether maintenance is likely to feature in your settlement.

We prepare the disclosure, test the budget, advise on amount and term and draft the order, and we act on applications to vary, extend, capitalise or discharge one, and on arrears. Related topics are listed on our money and financial settlements hub. RakLAW Solicitors does not offer legal aid; our charges are on the family law fees page. Call 0203 345 2000 or book an appointment. RakLAW Solicitors is SRA regulated, SRA number 8007405.