Spousal maintenance is a regular payment made by a spouse or civil partner or former spouse or civil partner to their husband, wife or civil partner. It is usually expressed to be payable monthly. It is separate from child maintenance. Spousal maintenance orders can be made in divorce, nullity, dissolution of civil partnership and judicial separation proceedings.
There is no set formula for calculating spousal maintenance. Each case is different. The amount and the length of any order for spousal maintenance is determined by the careful balancing of various factors including the length of the couple’s marriage, their ages, their incomes and assets, their needs and the standard of living enjoyed during the marriage.
The amount will vary significantly from case to case depending on the individual facts. If it has been a long marriage and one of you has given up work to care for your children, the approach will be very different from where it has been a short marriage and both of you have retained your careers.
You can apply for spousal maintenance as soon as your petition has been filed at court and any order for spousal maintenance can be back dated to the date of the petition. If you require immediate financial support you can ask the court to order that you receive “interim maintenance”.
An order for spousal maintenance made before final order is called “interim maintenance” (technically it is called “maintenance pending suit” until decree absolute). If you need financial support whilst your application for financial remedies is being processed, you can make an application for interim maintenance.
Interim maintenance orders are often for lesser amounts than you might expect to negotiate or be awarded in your final order. This is because they are designed to meet your basic interim needs on a broad brush basis until a proper assessment of your long term budget can be carried out.
Applications for interim orders can be expensive and risky in terms of legal fees, so it is better to try to agree a level of interim maintenance if you can, rather than waste the family’s resources on unnecessary litigation unless there is no other viable option.
In addition to interim maintenance, you can also apply for a Legal Services Payment Order (LSPO). These are sometimes also referred to as Section 22ZA orders after the statutory authority under which they can be made.
An LSPO is an order requiring the other spouse to pay an amount to enable you to obtain legal services. It can be a one-off payment or payments in instalments or for a specified period or deferred. However, they will usually only cover a discrete part of the court proceedings, rather than covering all of your costs and it is sometimes necessary to make more than one application.
Spousal maintenance orders come to an end if:
• There is an express date or express event specified in the order for it to stop – this is called a “term order”
• You or your spouse die
• If you are in receipt of spousal maintenance, you remarry or enter into a civil partnership
• An application is made to the court for the order to be terminated, due to a change in circumstances
In the absence of any of the above, spousal maintenance orders are “joint lives” which means that they are paid for life, though such orders are increasingly rare.
The court has a duty to bring an end to the financial links between a couple as soon as possible. In some circumstances therefore the court will make an order for spousal maintenance which is expressed to last only for a specified number of years. This is called a “term order”.
These orders are usually made in cases where one of you is being afforded an opportunity to retrain or re-enter the workplace, after having raised children, so as to become financially independent. Sometimes, they are made where it is anticipated that you will be able to draw on your pension provision, when the maintenance order ends. Some term orders can be extended but some cannot.
The court is required to consider an adjustment to financial independence and will give effect to that, even if that may result in some hardship, so long as it is not undue hardship.
A nominal order (often expressed to be for 5p a year) is a maintenance order which has the effect of preserving, as a safeguard, one spouse’s right to apply for substantive maintenance should they need it in the future.
These orders are usually made where one spouse is the primary carer of the children and although they have sufficient resources not to need maintenance at the time of the order, would be financially disadvantaged if there were a substantive change of circumstances resulting in them being unable to meet their financial needs. The order means that they could come back to the court in that event and ask for their maintenance order to be increased to a substantive amount. It therefore acts as a safety net where support obligations continue to, in particular, minor children as an edge against an adverse change in circumstances.
Can you change a spousal order after it has been made?
You can apply at any time to vary a spousal maintenance order, if there is a change in your circumstances. The level of maintenance to be paid can be varied by increasing or decreasing the amount. The order can even be dismissed altogether.
Spousal maintenance orders are most commonly varied where one spouse loses their job or retires or where one spouse starts working, not previously having done so, or benefits from a significant increase in their earnings.
Why Dawson Cornwell?
You need a solicitor who has the training and judgment to be able to assess the level of maintenance you can realistically expect to achieve. This is not something that you can find out by looking online – it requires experience and a considered assessment of case law from a lawyer who is also conscious about the proportionality of costs.
For example, applications for variation have to be weighed up carefully because they are not always cost effective, if the saving achieved by an increase or reduction in the level of maintenance does not materially exceed the amount of legal fees which would be incurred in pursuing it.