A guide to spousal maintenance

What is spousal maintenance?

When a couple divorce they have financial claims against each other, one of which is for income, otherwise known as spousal maintenance. For a claim to be successful there usually (but not always) needs to be a significant difference between the respective incomes of the divorcing couple. 

The partner with the lower income also needs to be able to justify why they need spousal maintenance; in other words, they have to demonstrate that their own income is insufficient to meet their income needs, such as household bills and other expenses.

It is important to note that when deciding how much income an individual needs, the standard of living that was enjoyed throughout the marriage may be taken into account. In such instances, ‘needs’ may not be limited to paying the gas bill!

How is spousal maintenance calculated?

The level and term of maintenance will vary with each case, but the court will want to try to achieve a clean break between spouses as soon as possible. This means the court has to consider whether it is possible for spouses to become financially independent and whether a fair and reasonable settlement can be reached without the need for spousal maintenance to be paid. In other words, can the income claims that spouses have against one another be dismissed immediately? 

If the answer is ‘yes’, no order will be made and that will be the end of the matter.

But if the answer is ‘no’, then the case will be considered on its own facts and the level of maintenance will be determined having regard to all the circumstances, including the amount of income currently available, the future earning capacity of both spouses and the amount required by both spouses to enable them to meet their income needs.

How long does spousal maintenance continue?

Spousal maintenance is usually paid monthly. It will stop when certain events  occur, such as the expiry of a fixed term (called a term order), for example five years, or the recipient remarries or one of the partners dies.

What happens if I lose my job and cannot pay spousal maintenance?

This is a question that is frequently asked.

A spousal maintenance order can be varied - upwards or downwards - if there is a change of circumstances; for example, if the payer loses their job and can no longer afford to pay or if the recipient’s own income position improves beyond what was anticipated when the order was put in place. A change of circumstances may justify spousal maintenance being varied downwards; alternatively, if the recipient’s income position worsens (for example, if they lose their job) they may be able to justify an upwards variation of maintenance. 

Spousal maintenance orders can also be capitalised. This means a lump sum can be paid to the recipient instead of ongoing maintenance payments. It can allow a clean break to be effected more quickly.

What is nominal maintenance?

Nominal maintenance is maintenance paid by one spouse to another, not to assist with meeting income needs but to leave the recipient’s claims against the individual paying the maintenance open, should they need help with meeting their income needs in the future.

For example, one spouse may pay the other a nominal amount of £1 each year. This does not provide the recipient with any immediate benefit but it would allow them to ask the court to vary the amount upwards in the event they found themselves in financial difficulties at a later date.

Nominal maintenance may be appropriate when there are young children involved. If one parent has primary care of a child or children and there is uncertainty around their income (for example, if there is a concern they may be made redundant or become unable to work), a nominal maintenance order can provide that parent with a safeguard. It means they can look to the other parent for additional financial support if their concerns become a reality.

The downside to a nominal maintenance order is that the individual paying the maintenance is not able to achieve a clean break. and sever all financial ties with their spouse. The term of any nominal maintenance order can vary but it will often cease when the children start or, in some cases, finish their secondary education.

Get in touch about spousal maintenance

The issue of spousal maintenance is not straightforward; there is no set formula to determine if or when it is paid, and the amount and duration of any maintenance payable varies in each case. 

If you believe you may be entitled to spousal maintenance or wish to discuss if you are able to vary any existing spousal maintenance order, seek legal advice at the earliest opportunity to explain your rights and help protect your finances. Come and talk to one of our experts. We are happy to have a free, no obligation, 15 minute phone call with you.