Claiming Spousal Maintenance
With the cost of living crisis in the news and fears about rising gas and electricity bills as well as the effect of inflation on food and petrol costs, UK family solicitors are getting enquiries about claiming spousal maintenance.
In this article we look at the basics of claiming spousal maintenance.
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Who can claim spousal maintenance?
You can claim spousal maintenance if:
- You are or were in a married relationship or you entered into a civil partnership. Even if your marriage or civil partnership didn’t last long you may still be able to get spousal maintenance. For example, if you cohabited together for a long time before your marriage or if you have young children or you are not able to work due to ill-health.
- You did not agree a clean break financial settlement on your divorce.
- You have not remarried since your divorce or the end of your civil partnership.
Who can't claim spousal maintenance?
You can't claim spousal maintenance if:
- You are or were in an unmarried relationship – you may be able to claim child support and make an application to court for top up child maintenance if the other parent is a high earner.
- You previously agreed to a financial clean break order that prevents any further financial claims for income or capital. Some court orders exclude additional capital claims but preserve your right to claim spousal maintenance. If you are not sure about your legal rights, speak to a family law solicitor about the wording of your financial court order. Don’t delay in seeking advice as your ability to claim spousal maintenance may have been time limited in the financial court order (referred to as a deferred clean break order).
- You have remarried.
- If you have a financial court order and the order says your spousal maintenance claims and right to apply for spousal maintenance stop if you are in a cohabiting relationship with a new partner for a specified period of time. It is worth getting a family law solicitor to check the wording of the financial court order and to advise on whether your new relationship would be considered a ‘cohabiting relationship’. That way you won’t lose out if you have a potential spousal maintenance claim.
How do you claim spousal maintenance?
Spousal maintenance doesn’t have to involve a court application. You can agree spousal maintenance with your ex-husband, wife or civil partner by:
- Solicitor negotiations
- Family mediation
- Family arbitration
If you can't reach an agreement on:
- Whether you should get spousal maintenance
- The amount of spousal maintenance
- When the spousal maintenance will stop (it can be paid until remarriage, further order or time limited)
Then you can apply to court for spousal maintenance. Your spousal maintenance claim can either be:
- An interim application for spousal maintenance so you can get support whilst a financial settlement is negotiated or ordered by the court.
- An application for a financial court order with a claim for spousal maintenance included as well as other claims. For example, claims over the house, family business, savings or pension.
- A separate application for a spousal maintenance order after you got a financial court order – this is only possible if you haven’t remarried and the court didn’t make a clean break order in the original financial court order.
- An application to vary an existing spousal maintenance order – you could ask the court to increase the amount of spousal maintenance or if the original spousal maintenance order was time limited, in some cases, you can ask the court to extend the time that spousal maintenance is payable for.
- An application to capitalise an existing spousal maintenance order so you get a lump sum payment instead of ongoing maintenance. You can also ask for a pension sharing order to be made instead of spousal maintenance – that works where your ex’s pension has come into payment and it is in your interests to have a share of the pension income rather than ongoing spousal maintenance.
Spousal maintenance court proceedings
If you can't agree on spousal maintenance and you start court proceedings then the nature of the court proceedings will depend on whether you are applying for interim spousal maintenance, applying for a full financial settlement, including a spousal maintenance claim, or you are applying to vary an existing spousal maintenance order. Your family solicitor can advise you on the financial disclosure and court procedure relevant to your application.
Will I get spousal maintenance?
Whether you get spousal maintenance and, if so, for how long and how much, will depend on a range of factors, including:
- Your current income.
- Your income potential – for example if the children have left home, you may be able to increase your hours of work or use qualifications that you have gained to get a better paid job.
- Your financial needs – these are assessed according to reasonableness. For example, your mortgage payments and financial needs will be higher if you are having to house your children as well as yourself.
- Your age and health – if your health is restricting your employment options you will need medical evidence about this.
- The length of your marriage and relationship – if you were only in a relationship for a short period and you don’t have children together then it is less likely that the court would award you spousal maintenance. Alternatively, if spousal maintenance was ordered it might only be for a short period to enable you to adjust to the marriage breakdown.
- The standard of living enjoyed during the marriage – if you enjoyed a good standard of living and this remains affordable then your standard of living will be taken into account.
The court and your family solicitor will also need to look at your ex-husband or ex-wife's income, their potential income, reasonable outgoings etc to be able to come to a balanced view on spousal maintenance. For example, your ex-spouse may have lost their job or business so may now not be able to afford to pay spousal maintenance or your ex-spouse may be deliberately trying to reduce his or her self-employed income or inflating their outgoings so that they won't be ordered to pay you spousal maintenance or to reduce the amount payable.
Spousal maintenance advice
Spousal maintenance can raise tensions and emotions, particularly where:
- An ex struggles with the idea of monthly payments and ongoing financial ties – in some situations a lump sum instead of ongoing spousal maintenance can resolve this.
- You are struggling with rising household costs and the limits of child support payments but your ex seems to be living the ‘high life’.
- Your spousal maintenance payments have not increased or kept up with inflation and your career options are limited because of childcare responsibilities but your ex has received work promotions and bonuses.
Whether you are the ex receiving the spousal maintenance or the ex paying the spousal maintenance, spousal maintenance is a tricky topic. It is best to get early legal advice from a specialist family law solicitor on spousal maintenance claims so you understand your rights and how the law on spousal maintenance operates in your circumstances.
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