Spousal Maintenance – when? How long? How much?

 

 

Spousal maintenance is an emotive issue. When husbands and wives are divorcing it is often the most difficult thing to agree upon. One of the difficulties is there are no hard and fast rules so whether or not spousal maintenance is payable. It depends very much on the wife’s needs and the husband’s ability to pay. Child maintenance is dealt with separately and the formula used by the Child Maintenance Service (formerly the CSA) is generally applied even when no application is made to the CMS. Spousal maintenance is therefore on top of child maintenance.

 

In this article I have made the assumption that it is the wife who will claim spousal maintenance and the husband who will pay it. There are of course exceptions to this rule but in most cases spousal maintenance claims arise where a wife has taken a career break as a result of having children.

 

If no order is made in full and final settlement of a financial claim within divorce, then a wife’s claim for spousal maintenance remains open until either husband or wife dies or the wife remarries. It is one of the main reasons why it is important to seek a solicitor’s advice and obtain a financial order, even if that order provides for there to be a clean break.

 

Where there are dependent children, even where it is not appropriate for there to be substantive spousal maintenance Courts like to keep open the ability of a wife to claim spousal maintenance until the children finish their education. This is known as nominal spousal maintenance. To many husbands the idea of spousal maintenance is an anaethema as they hate the idea of their ex-wife being able to benefit from the fruits of their labour in the future. In some cases a husband may elect to increase a capital payment to their wife in return for a clean break on spousal maintenance.

 

Unless an order limits the term of spousal maintenance to a number of years, spousal maintenance will continue until either party dies, the wife remarries or a further Court Order is made so your solicitor should make sure that the term of years over which maintenance is paid is set out in the Court Order and should consider whether a clause should be inserted into the Order barring a wife from applying to extend the term over which it is paid. Conversely from a wife’s point of view it is important for her to understand that if she wants to apply to extend the term over which maintenance is paid, she must do so before the maintenance order comes to an end, otherwise it is too late.

 

In future years either can apply to vary the level of maintenance payable upwards or downwards. The onus will be on the person making the application to show why the Order should be varied. Typical examples may be a husband losing his job or the wife co-habiting, or something happening which changes the financial circumstances of one or the other.

 

A recent Judgment by Judge Mostyn known as SS v NS has given comprehensive guidance on the principal issues surrounding spousal maintenance:

 

  1. Should a spousal maintenance liability arise in the first place? The most common rationale is to meet needs which the relationship has generated e.g., by the wife taking a career break to bring up the children;

 

  1. An order should only be made by reference to a wife’s needs except in exceptional cases;

 

  1. Where the needs in question are not caused by relationship generated disadvantage, the award should generally be aimed at alleviating significant hardship;

 

  1. The Court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable;

 

  1. If the choice is finely balanced between a term of years which can be extended by the wife applying to Court, and an order that is to last until the first one dies, a Court should steer towards a term of years that can be extended;

 

  1. The standard of living during the marriage is relevant to the amount of spousal maintenance that should be paid, but it is not decisive. It should be weighed against the desired outcome of independence;

 

  1. When working out the correct level of maintenance to be payable a Judge should not minutely examine a wife’s budget but stand back to look at the global total and consider whether it represents a fair proportion of the husband’s available income;

 

  1. Where the husband’s income comprises of both base salary and bonus, the spousal maintenance order should provide for the wife’s needs to be met from the base salary, with additional discretionary items being met from the bonus on a capped percentage basis. This means that where applicable, and it is not appropriate in all cases, where a wife’s spousal maintenance award is to be met out of the husband’s bonus, she is to receive a percentage of the bonus so she shares in the risk of the bonus going up and down, but the amount of the award should be capped so if the husband does exceptionally well he alone benefits from his hard work;

 

  1. When a wife applies to extend the term of years over which maintenance is paid she does not need to show an exceptional justification but the Court should examine whether the premise of the original order that the wife can achieve independence has been impossible to achieve and, if so, why;

 

  1. If a husband applies to discharge a joint lives order the Court must examine the original assumption that it was too difficult to predict eventual independence;

 

  1. If the choice is between a term of years that can be extended, and a non-extendable term and the choice is finely balanced, the decision should normally be in favour of the economically weaker party and so usually an extendable order should be made.

 

Whether spousal maintenance should be paid, how much should be paid, and for how long, is dependant upon the particular circumstances of your case. Experienced family lawyers are able to advise based on their experience of local judicial decisions and on a proper understanding of your situation so if you have any questions about spousal maintenance please contact our specialist Family department on 0844 6300 012 or info@nevesllp.co.uk.