What is maintenance in a divorce?
Maintenance is the term used for a regular financial support payment made by one spouse, civil partner or parent to the other following a divorce, dissolution or separation. The primary purpose of maintenance is to provide ongoing financial assistance to the lower-earning or non-earning spouse, civil partner or parent. Maintenance aims to ensure that the financial disparity between spouses, civil partners or parents does not result in undue hardship and that each person is able to meet their living costs moving forwards. Maintenance is typically paid on a monthly basis, for a set period of time.
Interim maintenance, also known as interim periodical payments, may be agreed or ordered during the course of financial discussions or court proceedings. It aims to provide financial support to the lower-earning spouse or civil partner until the divorce and financial settlement is finalised. This type of maintenance ensures that the dependent spouse can meet their immediate needs during the legal process, pending a financial order.
Term maintenance may be agreed or ordered for a fixed period after the divorce or dissolution is finalised. The duration of this term varies, it could be for a fixed term of years, or until the youngest child of the family reaches a certain age or educational stage (for example end of secondary education, age 18 or end of tertiary education). This type of maintenance is typically provided when the recipient needs time to gain financial independence by getting back into the workplace and rebuilding their own ability to earn. This can involve a period of education, training, or work experience to re-enter the workforce and achieve financial independence.
Joint lives maintenance is an ongoing financial support arrangement that continues until the death of either spouse, the remarriage of the recipient, or further court orders. This type of maintenance order has fallen out of favour with the Courts in recent years and is only awarded in a small number of cases where the recipient spouse is unable to become self-sufficient due to age, health, or other factors.
A clean break order is not a type of maintenance but rather an agreement where both spouses or civil partners agree that no further financial support will be provided after separation. This arrangement is suitable for couples who wish to achieve financial independence from each other and avoid ongoing financial ties. Sometimes this is agreed or ordered as each person is able to meet their own needs from their income and other resources, without support from the other. A Court will not order maintenance unless it is needed, and so in many cases the appropriate outcome is a clean break and the Court tries to achieve this wherever possible.
An alternative way of getting a clean break may be by maintenance being paid in one lump sum rather than on a monthly basis. This will only work if there is enough capital to make an additional payment and the amount to be paid is worked out by looking at what the monthly maintenance should be but then also factoring in future inflation and the benefits of early payment by way of lump sum.
The duration of the marriage plays a significant role in maintenance decisions. Longer marriages are more likely to result in an order for maintenance payments. Although it may also be considered fair to order payment of maintenance in short marriage, it is often for a shorter term or only on an interim basis.
Courts assess the financial needs and resources of both spouses or civil partners. This includes evaluating their income, assets, debts, and overall financial situation. The Court will consider:
The age and health of both spouses or civil partners are important factors. Older spouses or civil partners or those with health issues may have a more challenging time achieving financial independence, leading to longer maintenance awards.
The earning capacity and employment prospects of both spouses or civil partners are considered. If one spouse or civil partner has significantly higher earning potential, they may be required to provide financial support to the lower-earning spouse or civil partner. This is also relevant if one spouse or civil partner is not in employment, the Court can place an expectation on them to obtain work and assign them an earning capacity based on their qualifications and experience.
The standard of living enjoyed during the marriage is taken into account. The goal is to ensure that the dependent spouse or civil partner can maintain a similar standard of living after the divorce. Whilst it is appreciated that this is not always possible when dividing one household into two, the Court will be reluctant to see a scenario where one spouse or civil partner is able to maintain a standard of living similar to that enjoyed during the marriage or partnership but the other experiences a significant drop in that standard of living.
Child maintenance is an entirely separate matter from spousal maintenance. This involves payments from one parent to another for the benefit of any child/ren. If separating parents cannot agree on a figure for child maintenance between them, it can be calculated by the Child Maintenance Service (CMS) using their standard formula. The payment is calculated considering the paying party’s gross annual income (what they are paid before paying any tax) and the number of nights out of the year the child/ren spend with each parent. If the child/ren spend their time equally with both parents, no maintenance is payable.
If the paying parent’s income is in excess of the maximum level assessable under the CMS (currently £156,000 gross per annum) it is also possible to apply to Court for a ‘top-up’ child maintenance order.
In the landmark case James v Seymour, the Court decided to make an adjustment to the way in which the formula is applied in cases where the paying party’s income is in the range of £156,001 to £650,000. This is known as the Adjusted Formula Methodology (AFM) which is used to determine the Child Support Starting Point (CSSP).
The first step is to calculate the paying party’s eligible income which is done by:
The next step is to determine the number of nights per year spent with the paying parent, and then apply the corresponding formula. A useful table was created by the judge in that case, HHJ Mostyn and included in his judgement which can be referred to for the purpose of such calculations. In essence, the purpose of the ruling in James v Seymour was to ensure consistency and fairness in cases that fall into the ‘top up’ maintenance jurisdiction.
The first step in understanding what level of child maintenance may be payable is therefore to ascertain the paying parent’s income and to have established arrangements for how the child/ren share their time between parents. It is then possible to access online calculators either through the CMS or through other resources if looking at “top-up” maintenance to calculate the amount payable.
This blog has outlined in summary form the different types of maintenance and the factors influencing their determination. It is not exhaustive and each case turns on its own facts. If you are going through a divorce, consulting with a knowledgeable family law solicitor can provide valuable guidance and help you understand if maintenance is applicable in your divorce, dissolution or separation and if so, help you to achieve a fair provision for maintenance. Please contact us to discuss your own individual situation.
Eden Palmer is a Trainee Solicitor in our Horsham office.