Demystifying spousal maintenance

Spousal maintenance is a payment made by one spouse or civil partner to the other on a periodical basis, broadly speaking, to meet their financial needs. The legal term for spousal maintenance is ‘periodical payments’ but it is known informally by other terms – you may have heard it referred to as ‘alimony’ or ‘spousal support’. I shall continue to use the term spousal maintenance for ease of reference, but please note that the term ‘spouse’ in this piece means civil partner as well as husband and wife. 

The purpose of spousal maintenance is to assist the financially weaker party to meet their needs whilst they transition to financial independence, if that is possible; or, if not, until one of the parties dies (although such a term is less common now). There are many factors that the court will give weight to when considering not only the amount of spousal maintenance payable (the ‘quantum’) but also how long such payments should be paid (the ‘term’). 

Who is eligible for spousal maintenance?

Anyone who is getting divorced or dissolving their civil partnership can ask for spousal maintenance.  But spousal maintenance is not a guaranteed part of a financial settlement on divorce or dissolution and the court will always look to work towards financial independence for both parties, where this is fair in the circumstances. 

Just because one party earns more than the other, does not mean that they will necessarily be required to pay spousal maintenance.  Spousal maintenance is not about equalising or sharing incomes.  There are many other relevant considerations, including the length of the marriage, the financial resources of each party, and their earning capacity – but spousal maintenance is driven by needs. 

How much will I receive, or be expected to pay, and for how long?

There is no set formula or calculation that the court will apply to determine the quantum or term of spousal maintenance payments. The starting position will be for both parties to prepare a ‘budget’ of their monthly expenses – this will be a detailed document, including expenses such as mortgage, utilities, food, fuel and clothing, and other expenses including holidays, house maintenance and entertainment. These budgets allow the court to consider each party’s reasonable needs, with the term ‘needs’ being generously interpreted.  

The payer’s budget will be examined to establish the surplus income available to pay spousal maintenance if appropriate, and the payee’s budget will be examined to establish the shortfall sum they expect to be met by way of spousal maintenance. Parties will likely both be expected to adjust their expectations in terms of standard of living – the income that was enabling the lifestyle before separation may be insufficient to sustain two separate households at the same level.  Spousal maintenance is intended to be a ‘stepping stone’ to financial independence, and so some level of ‘hardship’ in adjusting to a new lifestyle is to be expected. 

Whilst the courts of England and Wales are generally considered one of the most generous in the world when it comes to spousal maintenance, longer term and ‘joint-lives’ orders (where the payer is ordered to pay spousal maintenance until the death or remarriage of one party) are now rare. The court will now look more critically at how long is necessary for a party to transition to independence.

Not every couple will ask the court to determine how much (if any) spousal maintenance should be paid and for how long.  Spousal maintenance can be agreed between the parties, or via solicitor negotiation. In the event an agreement cannot be reached, either party can make an application for the court to determine the matter alongside the other financial claims the parties have as a result of their marriage / civil partnership.  If a couple agree a payment of spousal maintenance, it’s important to have this documented to ensure that the agreement can be upheld.

What if my ex is refusing to get a job?

The court will expect both parties to maximise their earning capacity. That may include a non-working spouse obtaining employment, which might mean re-entering the workplace after a career break. 

If there is evidence that one party refuses to maximise their earning capacity, the court may make a spousal maintenance order assuming they will be able to receive an estimated level of earned income. 

What is the impact of death, illness or remarriage on spousal maintenance? 

In the event of the death of the paying party, unless there is a specific provision in the order to the contrary, the spousal maintenance payments will cease automatically. Spousal maintenance also ceases automatically on the remarriage of the person receiving the maintenance.  In contrast, if the payer is the one remarrying, the spousal maintenance will continue. Cohabitation by the payee with another person is not an automatic trigger for the ending of spousal maintenance (but can be included as one in a court order).  

If the payer feels they can no longer make spousal maintenance payments at the level ordered by the court, for example, if they fall ill or lose their job, an application to court can be made requesting the court ‘vary’ the order in line with the specific circumstances of the case.

If the payee’s circumstances change significantly for the worse they may also make an application to vary the amount payable by the payer or to extend the length of time the payer needs to pay spousal maintenance. If their circumstances change unexpectedly for the better, for example, the payee is now cohabiting with a new partner with means and cohabitation was not included in the order as an automatic trigger to end spousal maintenance,  the payer may also make an application to the court to reduce or end the maintenance payments early if they are not required to meet needs. 

What about Child maintenance?

Child maintenance might impact spousal maintenance, but child maintenance is calculated separately and so costs associated with any children (including school uniforms, extra-curricular activities, educational costs etc.) should be set out in a separate budget. While there are no set formulas for spousal maintenance, child maintenance for many families is calculated using the Child Maintenance Service (CMS, formerly the CSA) formula (either following an application to the CMS or by agreement).  Child maintenance can be recorded in a court order but after 12 months either party can apply to the CMS for a re-calculation.  

The court (rather than the CMS) has the power to determine child maintenance in certain limited circumstances (such as where income is high or the paying parent lives abroad).  Child maintenance can be complex so it’s important to seek advice.