The term spousal maintenance conjures up images of super-rich celebrities or entrepreneurs being forced to hand over thousands of pounds per week to support their wife’s shopping addiction.
However, in real life the law of spousal maintenance is complex, made even more so by the fact that negotiations must be done when the relationship has broken down and parties want to move on.
Spousal maintenance exists so that the needs which the marriage has generated will not be rendered unfundable if the marriage fails. If a wife (for simplicities sake I will refer to the ‘wife’ and ‘her’ in this article but increasingly it is the husband who is applying for financial provision) has given up her career to stay at home and raise children, her career and income expectations will be limited. This is especially so if the marriage lasted many years.
Whatever happened to a ‘clean break’?
It can be difficult for a party to comprehend having to support an ex-spouse after a divorce. I have had many clients stare at me disbelievingly when I inform them that the person they no longer love (and in many cases don’t even like), is entitled to a percentage of their future income.
Although there is no automatic entitlement to spousal maintenance, the court has a duty under legislation to consider whether a clean break can be achieved or one party requires further financial support.
How is spousal maintenance calculated?
The amount of maintenance awarded is based on ‘need’. Unfortunately, there is no objective test to measure the lifestyle needs of a person and their potential income, so all cases must be decided individually, with the Judge making a call as to what is fair based on the evidence before him or her.
Another complicating factor is that expenses can vary year on year.
What factors does a Judge take into account when deciding whether to award spousal maintenance?
The court takes eight factors into account in deciding whether or not to award spousal maintenance, namely:
- your respective present and future income, earning capacity, property and other financial resources;
- your respective financial needs, obligations and responsibilities;
- your standard of living before the marriage broke down;
- your age and the duration of the marriage;
- any disabilities;
- your respective contributions to the welfare of the family, including looking after the home or caring for the family;
- your respective conduct;
- any benefits a party will lose after divorce.
Will I be forced to make periodic payments or can I pay spousal maintenance in one lump sum?
The court prefers to order lump sum payments if possible as this allows for the desired ‘clean break’ most couples seek. If it does not make sense for a lump sum to be paid immediately (due to lack of capital) as an alternative, the court can order periodic payments which can end on a specified date.
In certain cases, the court will make a monthly Periodical Payments Order. It may also issue a Secured Periodical Payment Order, which secures payment on a particular asset so that if the party who is supposed to pay maintenance dies or defaults, the other party can demand the sale of the asset to fund future payments.
What is the procedure for applying for spousal maintenance?
The first step after an application for financial provision is made is for the Judge to consider the application in a First Directions Appointment. Both parties are required to attend and fully disclose their financial situation.
At the First Directions Appointment the Judge can:
- Give further directions on how the case will proceed. For example, the Judge might need further information and adjourn the hearing whilst this is being collated and examined.
- Make a final order in respect of the application.
- Refer the case to a Financial Dispute Resolution hearing.
- Order the couple to attend mediation.
Most cases are negotiated and settled before the final hearing. If this is achieved then the couple can ask the court for a Consent Order, making the agreement legally binding.
If an agreement cannot be reached between the parties, the court will order a date for a final hearing and impose a settlement after hearing both sides of the case.
It is imperative to seek advice from an experienced family solicitor if you wish to seek financial provision. It is a complicated process and without professional guidance you risk settling for a sum far less than you may be legally entitled to.
Sultan Lloyd Solicitors have the experience and expertise required to successfully advise clients on all separation and divorce matters. To find out how we can help you, please contact our Birmingham office on 0121 222 7643 to make an appointment with one of our family law team.