Family Law Articles
Spousal maintenance – how much and for how long?
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One of the first questions people ask when their relationship breaks down is whether they will have to pay ongoing maintenance to their former spouse or civil partner.
The answer will depend on the specific facts of each relationship: there is no formula based on the length of the relationship or ages of the couple, for example, which determines whether maintenance is payable. If an agreement cannot be reached, the court will undertake an individual assessment based on a checklist, including needs and the resources available.
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There are three types of maintenance orders:
- Joint lives: this continues until either person dies, further order of the court or until the recipient remarries/enters into a civil partnership. Either person can apply to the court at any time to vary the maintenance (upwards or downwards) if there is a change in circumstances. It is also possible to apply for the maintenance to be paid upfront as a lump sum ("capitalised") and for it to be stopped.
- Term: this continues for a set number of years. The maintenance can be varied or capitalised and, in addition, the recipient may apply to the court before the term expires for the term to be extended. An extension will, however, only be permitted in exceptional circumstances.
- Term with a bar: this is the same as a term maintenance order, save that the recipient cannot apply for the term to be extended.
A clean break order is one where no spousal maintenance is payable.
The court has a duty in all cases to consider a clean break, thereby ending a person's financial obligations as soon as possible after the decree of divorce/dissolution without causing undue hardship. This could, for example, be achieved by imposing a term maintenance order where the couple are close to retirement age, so that the maintenance will end when pension benefits become payable. However, where there are young children or the future is uncertain, it is more likely that maintenance will be awarded on a joint lives basis.
The level of maintenance will largely depend on the couple's needs. As part of the disclosure process, each person must compile a schedule of their anticipated future outgoings. This will be scrutinised as part of the checklist. The current trends are such that a person's needs will be generously interpreted. Consideration may also be given in "big money" cases as to whether a person can be said to have suffered a disadvantage as a result of a decision made during the marriage (to give up work, for example), where arguments of compensation may justify the making a maintenance order.
Contrary to popular belief, there is no automatic right to an equal share of income unless a person's needs so dictate. A former spouse or civil partner cannot therefore expect a maintenance order which provides for equality of income following the divorce/dissolution.
Often, the amount and duration of maintenance orders necessitate a complex balancing exercise in achieving fairness whilst at the same time ensuring financial independence. It is therefore crucial to seek specialist legal advice.
If you need further advice on this subject we will be pleased to hear from you.
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