FAMILY LAW

What is spousal maintenance and how is it calculated?

What is spousal maintenance?

Spousal maintenance is a continuing obligation for one spouse to pay the other a sum of money, usually monthly, following a divorce (although it can start before divorce is made final in certain circumstances). It is separate to child maintenance.

Spousal maintenance can last for a defined period of time (a ‘term’), which can be extendable or non-extendable, or for the remainder of the spouses’ life (‘joint lives’) – although this is increasingly rare.

Spousal maintenance will automatically stop on the remarriage of the receiving spouse (not cohabitation) or on the death of either of the spouses. It can be varied or dismissed if there is a substantial change in either spouses’ financial circumstances.

What is the purpose of spousal maintenance?

The purpose of spousal maintenance is to achieve a fair outcome on divorce. This is most driven by the principle of need.

The receiving spouse may not have enough income of their own to meet their monthly expenses. They may have limited earning capacity because of decisions made between the spouses during their marriage. For example, it may have been decided that a wife would take a career break to raise children, enabling a husband to carry on working and financially provide for the family. In such circumstances, upon marriage breakdown, that wife may find herself in a situation where she has young children to care for, no income of her own and no decent job prospects without retraining or slowly being phased back into the job market. This may justify the husband paying the wife ongoing spousal maintenance until such time that she can reasonably transition to financial independence.

For some spouses this can take longer than others, and it is entirely fact specific. Consideration will be given to whether there are children involved (and if so, their ages), the spouses’ respective ages, health, earning capacity (that is, how much are they capable of earning rather than what they are currently earning), their financial resources and financial obligations.

In limited circumstances, spousal maintenance – or at least an element of it – may be awarded to compensate the receiving spouse for any disparity in future earning potential. For example, where the receiving spouse claims, with a degree of certainly, that they have given up a very lucrative career to care for children and/or to prioritise the career of the other spouse by giving up their job to, say, relocate abroad, which if not forsaken would have resulted in earnings of at least equivalent to the other spouse. In practice, this is rarely successfully pleaded and if successful, results in a generous assessment of the receiving spouse’s continuing needs.

How is spousal maintenance calculated?

Unlike child maintenance, there is no set formula for calculating spousal maintenance, which can be problematic.

It is usually referable to budgets prepared by both spouses setting out in detail what they each need to meet their respective monthly and annual expenses, which should also factor in holidays, special occasions, and entertainment. Budgets are often indicative of the standard of living of the spouses whilst married (which may not be realistic if it is no longer affordable to maintain). If a budget is considered inflated, it will be scrutinised, therefore it is important that it can be justified if necessary.

The spouses’ respective incomes from all sources is then deducted from their budgets, to give either a monthly deficit or surplus. If there is no deficit, it would be unusual for substantive spousal maintenance to be awarded, although it may still warrant a nominal spousal maintenance order (see below).

It is not necessarily the case that if one spouse has a deficit it must be met in full by the spouse with the surplus – assuming it is affordable, as regard must be had to all the circumstances of the individual case, but this is a reasonable starting point.

What is nominal spousal maintenance?

This is where an order for spousal maintenance is made where the receiving party either has enough income to meet their needs or it is simply unaffordable for the other spouse to pay. No maintenance is in fact paid; however, the receiving spouses’ maintenance claims remain open, usually for a term (often during a child’s minority). This is designed to act as a safety net to allow for a future variation application should the circumstances of either spouse change.

If you would like to talk to an expert on spousal maintenance, or you are in the early stages of applying for spousal support, please do not hesitate to get in touch with our family team.

About the authors


about the author img

Gemma Garrett

Partner

Specialist advising on all areas of Family Law including divorce, complex financial matters, pre and post nuptial agreements, and children matters.

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