Spousal Maintenance and Divorce
When Family Law Solicitors negotiate a financial settlement after a divorce, spousal maintenance can be highly contentious. In this blog, our Family Lawyers examine spousal maintenance and answer your questions.
If you require assistance with a divorce settlement or need legal advice on spousal maintenance, our lawyers can provide you with the support you need.
Contact OTS Solicitors Family Lawyers in London for a phone, online or office consultation.
Spousal maintenance claims
A spousal maintenance claim can be made if :
- You are or were married to your husband, wife or civil partner, and
- You have not remarried, and
- The court has not ended your spousal maintenance claims.
Temporary spousal maintenance
A spouse or civil partner can request temporary or interim spousal maintenance to cover their living expenses until the court determines how the family assets should be divided and whether spousal maintenance should continue to be paid. An application for interim spousal maintenance is referred to as maintenance pending suit.
Negotiating spousal maintenance
If you can reach an agreement with your spouse, you may not need to go to court to get interim spousal maintenance or a financial settlement that includes spousal maintenance.
Spousal maintenance can be negotiated through:
- Solicitor negotiations.
- Family mediation.
- Family arbitration.
If spousal maintenance is agreed, your divorce solicitor will prepare a carefully worded financial consent order and ask a judge to approve the order without the need for a court hearing.
Applying for spousal maintenance
A spouse or former spouse applies for spousal maintenance in one of three ways:
- Application for temporary spousal maintenance.
- As part of a financial settlement application.
- In a spousal maintenance variation application.
The process to apply for spousal maintenance depends on whether the application is for temporary financial support, part of an overall financial settlement or a variation application. Every type of application involves financial disclosure and an assessment of both parties' reasonable needs and outgoings, as well as their earnings and potential earnings capacity.
Spousal maintenance as part of a divorce financial settlement
If you have a potential spousal maintenance claim because there is a significant earnings disparity, your Family Lawyers may negotiate, or the court may order:
- Spousal maintenance and a share of the family assets.
- No spousal maintenance, but a larger share of the family assets that includes capitalisation of your spousal maintenance claim.
Many factors will influence the negotiations or the court order. For example, the length of the marriage, the extent of the earnings disparity, the availability of equity in the family home, and the divorce assets and property.
The length of spousal maintenance payments
In the UK family court, judges exercise discretion when making a financial court order based on their assessment of a list of statutory criteria. These criteria are referred to as Section 25 factors because they are outlined in Section 25 of the Matrimonial Causes Act 1973.
When exercising judicial discretion, a judge can order that spousal maintenance is paid for:
- The life of the receiving spouse.
- Time limited, but the time limit can be extended, provided an extension application is made before the spousal maintenance order stops.
- Time-limited but with a bar to prevent the spouse from asking the court to extend the period during which spousal maintenance is paid.
Option three is called a deferred clean break, as the spousal maintenance will end at a specified point that cannot be extended. The maintenance payments could stop before the court-ordered endpoint if the person receiving the spousal maintenance remarries or if the person paying the maintenance requests that the court terminate the maintenance early due to a change in circumstances. These could include their redundancy, the person receiving the payments living with a partner, or getting a job or a pay rise.
Changing spousal maintenance payments
If the court orders spousal maintenance, the person receiving the payments can apply back to court for a larger award. Similarly, the person paying the maintenance can request that the court reduce or terminate the payments.
Changing the amount of spousal maintenance can be done by agreement after negotiation or by one former spouse applying for a variation of the spousal maintenance order.
When deciding a variation application, the judge will look at the Section 25 factors at the time of the variation hearing. For example, the paying party may have received a pay rise but also incurred additional financial responsibilities due to remarriage and the birth of additional children. The receiving party could have lost their employment, incurred increased outgoings due to mortgage interest rate changes, or be in a cohabiting relationship.
When considering a variation application, it is best to speak to a Family Law Solicitor about the likelihood that the court will increase, reduce or stop the payments to help you work out if making an application or opposing an application is a worthwhile exercise.
Ending spousal maintenance claims
A spousal maintenance claim can be ended in one of four ways:
- The judge makes a clean break order, stopping all future claims.
- The judge orders that spousal maintenance will cease at a specified point, and that the length of time for which spousal maintenance was paid cannot be extended.
- You agree not to claim spousal maintenance, and that agreement is included in a separation agreement or binding financial consent order.
- Spousal maintenance is being paid, but the judge orders that the payments should stop and not restart.
Legal advice on spousal maintenance
Spousal maintenance is a complex area of family law because, in most cases, it needs to be considered in conjunction with the overall financial settlement and the payment of child support.
Whether you are asking for spousal maintenance or opposing paying maintenance, you need specialist legal advice from Family Law Solicitors on your options and the best way to achieve a financial settlement.
If you want to change an existing spousal maintenance order, it's just as essential to take legal advice before applying for a variation of the court order or responding to the application.
Frequently Asked Questions on Spousal Maintenance
Who can apply for spousal maintenance?
You can apply for spousal maintenance if you are or were married or in a civil partnership. If you have separated and need financial support immediately, then your divorce solicitors can apply for interim spousal maintenance until you either reach an agreed financial settlement or the court makes a financial court order.
If you divorced some years ago, you may still be able to apply for spousal maintenance if you did not reach a financial settlement or if your financial court order left open the issue of a future spousal maintenance claim.
If you are not sure if you will be awarded spousal maintenance on an interim or final basis, it's best to talk to a Family Law Solicitor about your options and the court process.
Can a partner claim spousal maintenance?
An unmarried partner cannot claim spousal maintenance. They may be able to make a property application, or if they have a dependent child, they can also bring a child support and Schedule 1 housing claim.
Will I get spousal maintenance?
Whether the court will make a spousal maintenance order depends on the court's assessment of the Section 25 factors and the overall financial settlement. There are typically several ways that a family's assets can be divided. This may involve the sale or the transfer of the family home, the payment of a lump sum by one spouse to the other or the making of a pension sharing order.
If the court awards you 70% of the equity in the family home so that you can rehouse yourself with a mortgage, you may not need spousal maintenance. The position may be different if the court awards you 50% of the equity in the family home. You may need spousal maintenance to help you afford your monthly mortgage payments, and your spouse may be able to afford to pay spousal maintenance because they are receiving half the equity in the family home and earn more than you do.
Online and London Family Law Solicitors
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