Guide to Spousal Maintenance After Divorce UK

When you are getting divorced, you need to think about how you will split your assets with your spouse. Where there is a significant income discrepancy, you also need to consider whether you will receive or pay spousal maintenance after your divorce.

The Family Lawyers at OTS Solicitors can help you negotiate a financial settlement that meets your needs. We can support you through negotiations, during family mediation or represent you in a financial remedy application.

Contact OTS Solicitors Today for Expert Family Law Legal Advice.

Maintenance after divorce

There are two types of maintenance after divorce:

1. Spousal maintenance.
2. Child support.

Although the two types of maintenance differ, they can be paid as a single monthly amount. When negotiating spousal maintenance and child support, it is essential to consider the total amount payable and whether both spouses will have sufficient funds to meet their reasonable outgoings after receiving or paying the maintenance.

Spousal maintenance

Spousal maintenance is a regular payment made by one former spouse to the other. The money can be paid:

1. Voluntarily, or
2. Under the terms of a separation agreement, or
3. Under a court order.

Some spouses will agree to pay spousal maintenance temporarily until the family home is sold or until a financial settlement is reached.  This is known as temporary or interim spousal maintenance. The payment could be made directly to the estranged spouse or directly to a third party to cover outgoings, such as rent or mortgage payments.

Although the need for temporary financial support can often be agreed, the ongoing payment of spousal maintenance can be contentious, as the financially stronger spouse will typically want a clean break financial court order with no further financial claims for capital or income.

When is spousal maintenance paid after divorce?

Spousal maintenance payments will be considered where:

1. A spouse cannot meet their reasonable outgoings from their income, and
2. A spouse cannot increase their earnings to meet their reasonable outgoings, and
3. The other spouse has sufficient income to pay their own reasonable outgoings as well as pay spousal maintenance (and child support if there are children who are not being parented in a shared care arrangement).

Working out whether spousal maintenance is justified involves assessing the spouse's financial and personal circumstances against the criteria in Section 25 of the Matrimonial Causes Act 1973.

There was a time when one parent, typically the mother, would be a stay-at-home parent, but times have changed. According to the latest Office for National Statistics, from April to June 2021, three in four mothers (75.6%) were in work in the UK, and 92.1% of fathers were employed. Despite these statistics, spousal maintenance remains a necessary consideration, as one parent may be working part-time or there may be a significant income disparity.

Section 25 factors in favour of spousal maintenance include a long marriage, a spouse working part-time because they have pre-school age children, a spouse who has been out of the job market for a long time due to childcare responsibilities, or a spouse with health issues that prevent them from working or limit their earnings capacity.

Section 25 factors against a spousal maintenance order include a short, childless marriage or a marriage where the spouse has the ability or capacity to increase their income.

Calculating spousal maintenance

Unlike child support, there is no government-imposed formula for determining whether spousal maintenance should be paid or the amount to be paid. Instead, the court will assess both parties' income and earnings capacities as well as their future reasonable needs and outgoings.

Some spouses think they should get half of their spouse’s future income. That assumption is based on the court's presumption that capital assets should be divided equally between husband and wife, unless there is a good reason to depart from equal division of money in a savings account or equity in the family home.

Case law says that the court should not view post-separation income as a matrimonial asset available to share unless there is justification to make a spousal maintenance order after considering the factors in Section 25 of the Matrimonial Causes Act 1973.

Advising on the prospect of the court making a spousal maintenance order and the length of time the payments will be paid for, and the amount is something that a specialist Family Law Solicitor can assist with. The lawyer will need detailed information about your income, the potential to increase your earnings capacity and your outgoings. Your income may change if you can secure additional qualifications, or your outgoings may reduce if it is agreed that the family home will be sold and you will downsize.

Contact OTS Solicitors Today for Divorce and Spousal Maintenance Advice.

Maintenance terms

If spousal maintenance is agreed or ordered by the court, the next consideration is the maintenance term. There are four options:

1. Temporary or short-term spousal maintenance until a specified event, such as the sale of the family home.
2. Time-limited spousal maintenance with the option to extend the spousal maintenance term.
3. Time-limited spousal maintenance with a bar preventing the spousal maintenance term from being extended.
4. Joint lives spousal maintenance, also known as maintenance for life.

The court will order spousal maintenance payments for the shortest period necessary. Here are some examples:

1. Temporary spousal maintenance may be appropriate if it is known that outgoings will decrease when the family home is sold and the mortgage redeemed.
2. A time-limited spousal maintenance order with a bar to stop an application to extend the time spousal maintenance is paid for may be appropriate if the maintenance is intended to allow the financially weaker spouse time to adjust to the divorce and return to paid employment. Alternatively, a short-term limited spousal maintenance order may be appropriate to provide an ex-spouse with income until they are of an age to draw down a pension under a pension sharing order
3. An extendable spousal maintenance order may be reasonable if there are income uncertainties. For example, the parent of a young child with special educational needs whose earnings capacity is affected by uncertainty about how the child’s future needs will impact their future earnings capacity.

Changing spousal maintenance

The amount and term of spousal maintenance can be changed by agreement or by a judge if either former spouse makes a variation application.

On a variation application, the court could decide:

1. To increase or reduce the amount of spousal maintenance.
2. To end spousal maintenance.
3. To extend the time spousal maintenance is paid for – provided the court made a spousal maintenance order that was capable of being extended.

When deciding what order to make on a variation application, the court will consider the income and reasonable outgoings of the former husband and wife.

Ending spousal maintenance

Spousal maintenance automatically ends if the spouse receiving the spousal maintenance remarries or dies. The original spousal maintenance order may also include other triggers for the payment of spousal maintenance to stop, such as:

1. An end date with either a right or no right for the spouse to apply to the court to extend the end date.
2. The spouse cohabiting with a partner for a specified period, such as 3, 6 or 12 months.
3. The sale of the former family home.
4. The youngest child of the family reaches a specified age, such as 7 or 11.
5. The date when the spouse receiving the spousal maintenance will first be entitled to pension income through a pension sharing order.

The spousal maintenance order may include other end dates. In any event, either a paying spouse or the spouse receiving the spousal maintenance can apply back to court to end or vary the spousal maintenance order at any date. For example, if the paying ex-spouse loses their job and cannot get another one.

When the court is asked to vary a spousal maintenance order, it can make a pension-sharing order in its place. An ex-spouse who receives spousal maintenance would usually prefer pension income in retirement, as a pension-sharing order does not end on the death of their ex-husband or wife and cannot be varied or changed.

Clean breaks and spousal maintenance

The court is often reluctant to order spousal maintenance, preferring to make a clean-break financial settlement wherever possible. The advantage of a clean break order is that neither spouse can ask the court to make further financial provision (capital or ongoing maintenance) in their favour, thereby achieving finality.

If a spouse has a potential spousal maintenance claim, the court may be able to achieve a clean break financial settlement by awarding the spouse with a lower income a larger percentage share of the net equity in the family home.

It is not always possible to achieve a clean break. For example, if there is a significant income disparity but the couple do not have capital assets to compensate the financially weaker spouse with an extra payment or share of the family assets.

A Family Law Solicitor can advise on the likelihood of the court ordering spousal maintenance and the feasibility of achieving a clean break order.

Child support

Child support is only payable if you have dependent children. A parent can ask the Child Maintenance Service to assess the amount of child support payable. The Child Maintenance Service uses a formula to calculate the amount of child maintenance payable. The formula is based on the paying parent’s gross income rather than the household's expenditure of the parent who is primarily caring for the child.

No child support is payable under the Child Maintenance Service rules if the care of a child is shared equally. This rule applies even if there is a significant income discrepancy between the two households.

In some circumstances, the parent can ask the court to make a child maintenance order. These include:

1. The child is a stepchild who has been treated as a child of the family during the marriage.
2. The child has a disability that involves additional expenditure associated with the disability.
3. The child attends a fee-paying school, and the parent wants the court to make a school fees order.
4. The Child Maintenance Service has made a maximum assessment, and the parent is asking the court to make a top-up child maintenance order.
5. The Child Maintenance Service does not have jurisdiction to make a child support assessment.

When the court makes a child maintenance order, it is not required to use the Child Maintenance Service formula to calculate the amount of child support payable. However, the court will consider the amount that the CMS would have assessed if it had been asked to conduct an assessment.

Spousal maintenance and child support issues

The spouse receiving the maintenance payment(s) can decide how the money is spent, even if a portion is paid as child support. There is no requirement to account for expenditure once the maintenance figure is agreed or ordered.

Maintenance disputes often centre on whether a parent spends the child support they receive on their child.  A parent does not need to account for how they spend child support. Child maintenance payments are intended to contribute towards mortgage, rent, and utility bills, as well as specific child-related expenses, such as clothing or food.

Talk to OTS Solicitors about spousal maintenance and financial settlements

Our specialist Family Law Solicitors understand that it can be hard to come to terms with a separation and to navigate a fair financial settlement. Our London Divorce Lawyers can help you with:

• No-fault divorce proceedings.
• Reaching agreed childcare arrangements and child arrangement order applications.
• Separation agreements.
• Legal advice during family mediation.
• Converting an agreement into an agreed financial court order.
• Representation in a financial remedy application.
• Enforcing a financial court order.
• Applying to vary a spousal maintenance order.
• Advice on child support.

All our expert lawyers offer sensitive and pragmatic family law legal advice focused on helping you secure the orders you need to move on to the next chapter in your life.

Contact OTS Solicitors Today for Family Law Advice.

Appointments are available at our office in London and by phone or online consultation.  

Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil, Tagalog/Ilonggo, and Urdu/Punjabi.

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