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Interim spousal maintenance
The court can also order interim spousal maintenance, known as maintenance pending suit.
This is financial support paid by one spouse to the other after divorce proceedings start until the divorce is finalised and a final financial order is made.
Maintenance pending suit orders may be backdated to the date of the application for a financial order but not before.
When considering an application for maintenance pending suit, the court will only concentrate on the party’s immediate and interim needs.
What is spousal maintenance?
Spousal or civil partner maintenance is also known as a periodical payments order.
This is an order that either party to the marriage or civil partnership shall make to the other periodical payments (maintenance) for such term as specified by the order.
Whilst there is an expectation in the eyes of the Family Law courts that both parties will contribute financially to their own needs as far as they can, decisions made during the marriage or civil partnership may mean that one spouse may not have sufficient income to meet their needs.
In such circumstances, it may be appropriate for that party to seek spousal maintenance.
Who can apply for spousal maintenance?
Either spouse or civil partner is eligible to apply to the court for maintenance.
The parties may be able to reach an agreement directly about the appropriate level and period of maintenance.
Mediation must be considered, if appropriate, to see if it is possible to reach an agreement outside of court.
If you and your partner cannot reach an agreement about maintenance, then a court application will be required.
When either party makes an application to the court, the court will make several standard directions to progress the application, and a hearing will be listed.
What will the court consider when deciding on spousal maintenance?
The court will follow the legal principles from legislation and case law before deciding on spousal maintenance.
The court has very wide discretion, meaning the outcome of financial proceedings can be difficult to predict.
The court will want to make sure any order made is fair.
The court will have regard to the welfare of any children of the family and the factors listed within section 25 of the Matrimonial Causes Act 1973, namely:
- The income and earning capacity that each party has or is likely to have in the foreseeable future.
- Earning capacity; any increase in that capacity that it would be reasonable to expect the parties to take steps to acquire.
- The financial needs, obligations, and responsibilities that each party has or is likely to have in the foreseeable future.
- The standard of living enjoyed by the family before the breakdown of the marriage or civil partnership.
- The age of the parties and the length of the marriage or civil partnership.
- Any physical or mental disability either of the parties has.
- Contributions made, or likely in the foreseeable future to be made, to the welfare of the family, including any non-economic contribution.
- Conduct, if that conduct is such that it would, in the court’s opinion, be inequitable to disregard it.
- The value of any benefit that either party will lose the chance of acquiring.
How long does spousal maintenance have to be paid for?
The court can order one party to pay maintenance to the other:
- for the rest of the joint lives of the parties
- for a fixed period that cannot be extended in any circumstances
- for a fixed period that can be extended
- for a nominal sum for a specified period
A joint-lives order is typically more appropriate after a long marriage or civil partnership where the parties have a large disparity in income/earning capacity.
The court must consider whether a clean break is achievable in all cases and will l also consider whether a capitalised clean break is appropriate, i.e., a one-off lump sum payment rather than ongoing maintenance and dismissal of maintenance claims.
The court is under a duty to consider whether the financial obligations between the parties can be terminated by way of a capitalisation of a maintenance claim.
How much spousal maintenance will be received?
There is no strict formula to calculate spousal/civil partner maintenance.
It is quantified by applying the discretionary checklist set out in section 25 of the Matrimonial Cause Act 1973, as listed above.
In broad terms, it is quantified by balancing the income/earning capacity of each party against their needs, considering all the circumstances of the case.
Can a spousal maintenance order be varied?
A spousal maintenance order is always capable of variation, and either party can make an application.
A significant change in circumstances since the making of the original order may warrant a variation or termination of the maintenance order.
What happens to my spousal maintenance order if I remarry?
A maintenance order will terminate if the party receiving the maintenance remarries or enters a civil partnership.
Interim spousal maintenance
The court can also order interim spousal maintenance, known as maintenance pending suit.
This is financial support paid by one spouse to the other after divorce proceedings start until the divorce is finalised and a final financial order is made.
Maintenance pending suit orders may be backdated to the date of the application for a financial order but not before.
When considering an application for maintenance pending suit, the court will only concentrate on the party’s immediate and interim needs.