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I am regularly asked by clients, and individuals who I am offering initial advice to, how the complex issue of maintenance works. There is barely a day that passes where a high-profile case (often those involving celebrities or multi-millionaires!) doesn’t make the pages of our daily newspapers. The truth of the matter is that spousal maintenance, as with any financial issue arising from divorce, is complex and the ‘rules’ vary enormously from case to case.
Spousal/civil partnership maintenance is income payable by one spouse/civil partner or former spouse/civil partner to the other, in their own right and in addition to any child maintenance. It is often one of the first topics people want advice on and unsurprisingly it is very often a problematic issue in divorce and dissolution cases. That said, it is often underplayed and its significance and benefit can be minimised by the potentially paying party.
Many clients find it a difficult concept to grasp that the law can order them to financially maintain their former spouse/civil partner even after divorce or dissolution. In short, there is a common law duty imposed upon spouses to support each other whilst the marriage/civil partnership exists but what many people aren’t aware of is that the duty continues after separation as a result of statute.
There is no automatic entitlement to spousal/civil partner maintenance on divorce or dissolution. However, legislation obliges the court to consider whether it is possible to achieve a clean break between the parties, or whether the needs of one party require maintenance to be paid by way of a ‘top up’ income from other sources to meet his or her ‘needs’. A clean break ends financial claims against one another on divorce or dissolution (save for child support).
There are many complexities involved in spousal/civil partner maintenance but in essence its purpose is to meet the ongoing reasonable financial needs of the financially weaker party. Often the reality is that the marriage or civil partnership has changed the course of a person’s life. Some people may have given up a successful career to focus on bringing up the children, running the household or supporting their ambitious husband or wife. When the marriage or civil partnership then ends it is obvious that moving on, having given up their chances of a high income, is going to be extremely difficult without some sort of support or compensation.
The questions the court has to consider is how much and for how long?
The level of maintenance paid will mainly depend on the couple’s financial needs. If you enjoyed a high standard of living during the marriage or civil partnership with luxurious expenditure and there are resources available, then the ‘needs’ are likely to be more generously interpreted. What should be made clear is that there is no automatic right to an equal share of income unless a person’s “needs” requires it.
As part of the disclosure process, each person must compile a schedule of their anticipated future outgoings. This will be scrutinised and it will necessitate a balancing exercise in achieving fairness. The concept of ‘need’ is not fixed in law and there is room for the exercise of discretion in the assessment of needs. It is in the assessment of need that opinions differ. So if you are separating, keep a careful note of your expenditure so you can justify it going forward. It is important that your expenditure is considered in the context of your available income. Overstating your income needs should be avoided and the expenses you are claiming should be proportionate and realistic. Over egging the pudding often leads to criticism by the judge.
Spousal/civil partner maintenance can be paid for a fixed term (which might need to be extended) e.g. until the youngest child reaches 18 or for life e.g. until one or the other dies. It can even extend beyond the death of the payer if that maintenance has been secured. You can also have a nominal order, which is where nothing substantive is paid, but there is no clean break, leaving the door open for claims to be made later on. It is like a pilot light which gently burns in the background. A clean break order is where no spousal/civil partner maintenance is payable.
All spousal/civil partner maintenance orders automatically end on the remarriage/civil partnership of the recipient. Conversely, the remarriage/civil partnership of the paying party will have no automatic impact on their obligation to continue to pay maintenance where an order is in existence. Significantly maintenance orders do not end automatically by law on cohabitation. Why? Cohabitation does not create a legal commitment and is simply not reviewed in the same way as a marriage or civil partnership.
Our current legislation requires that maintenance ends as soon as it is just and reasonable, and a term order i.e. one of fixed duration should be considered by the court, unless the receiving party would be unable to adjust without undue hardship to the ending of the payments.
The objective of maintenance orders is to enable a transition to independence, to the extent that it is reasonable bearing in mind the length of the marriage/civil partnership, standard of living, the need to house the parties, and the continued shared responsibilities relating to children.
What the above proves is that there is no hard and fast answer.
A prominent family judge, Mr Justice Mostyn, known for not mincing his words, effectively set out a checklist of the factors to be considered by the court on an application for spousal/civil partner maintenance in the case of NS v SS. His guidelines are not binding but he provided a useful summary.
If you’ve read this post this far, you might be interested to read some of his other comments in relation to this particular case. At the beginning of his judgment he described the wife’s claim for income as ‘speculative, experimental and unfeasible’, a ‘product of the great bitterness that the wife feels towards the husband’ and said that her statement ‘is a most unhappy document and seems to have been written with a pen dipped in vitriol’. As I said, he doesn’t mince his words. This is what emotion can do which is why my colleagues and I at Family Law Partners we recommend our clients see a specialist counsellor and consider mediation at an early stage so as to avoid an expensive and risky “battle of the budgets” within court proceedings.
For more information about Spousal/Civil Partner Maintenance, please do not hesitate to contact us.
Take a look at our recent blog on spousal maintenance – in what circumstances will spousal maintenance be changed?