Following a divorce or dissolution of a civil partnership where a former spouse or civil partner has insufficient income to support themself, the financially stronger person within the relationship may agree to pay ongoing maintenance payments. If an agreement on the amount or term can’t be reached through divorce proceedings or mediation, a court can make an order specifying the amount and duration for payments.

A lot of couples prefer to achieve a clean break so that they can each be financially independent, which is the overriding objective of the Court when possible. In some situations where it isn’t possible to achieve complete financial independence, the question of Spousal Maintenance will need to be considered.

Spousal Maintenance remains a highly contentious issue. You should always seek expert legal advice where Spousal Maintenance might be involved.

The amount of Spousal Maintenance paid is calculated by considering the needs, resources, and obligations of each party.

There is no strict formula for calculating Spousal Maintenance. How much you will have to pay or receive will depend on a range of factors and the court can use its discretion when considering these.

No rule says income should be divided equally. It is unlikely that a former spouse will get half the income of their higher earning ex. The court will strive for a fair outcome, but fairness does not generally mean a 50/50 split.

In the long term, the amount of Spousal Maintenance paid could vary from the temporary Spousal Maintenance you received at first depending on how other assets are distributed in the financial settlement.

The amount of Spousal Maintenance to be paid depends on the recipient’s reasonable expenses, current income and earning potential. The court will factor in the payer’s net income, needs and financial obligations.

They will also look at the recipients’ ability to generate income and any other unearned income such as child support, universal credit, child benefit, and any assets or investments that could generate an income.

The potential earnings of a Spousal Maintenance recipient is a touchy subject. It will be expected that the recipient tries their best to increase their income to meet their own financial needs.

On the one hand, a court will not expect the main caregiver with young children to work full-time. But on the other hand, once the kids are school age, it is reasonable to expect them to find a job that fits around school hours, particularly if the other parent can deal with childcare too.

Typically, payments will be decided as a set monthly amount, although they can also be expressed as a percentage of the payer’s income.

Either party in a divorce can apply for Spousal Maintenance. Its purpose is to ensure that the financial needs of the lower-income spouse are met until they can reasonably be expected to cover these themselves.

Until now, the financially weaker spouse may have been unable to generate an income for any number of reasons including supporting their spouse by running the household. This could be the partner who chose to stay at home to raise the children instead of pursuing a career and is either just starting out again in the world of work, taking time to retrain or does not have their own source of income yet.

If the main caregiver is still busy raising children, this will curtail their ability to find gainful employment to cover all their expenses. Likewise, someone with a disability may not be able to work either.

Spousal Maintenance can be paid on a regular basis, for example monthly or as a lump sum. The payment of a lump sum, or capitalised Spousal Maintenance, can achieve a clean break and that closes any further applications for Spousal Maintenance and gives finality to the process, which can be desirable in some cases.

Once it’s been agreed that ongoing Spousal Maintenance should be paid, the next step is determining the duration of payments and the nature of the Spousal Maintenance order.

Depending on the type of Spousal Maintenance order it could last a lifetime or for a fixed term.

Spousal Maintenance orders can be reviewed while payments are still being made. If there is a change of circumstances, you or your ex-partner could ask for the terms of the order to be reviewed and apply for them to be varied. Either party may ask for the amount to be increased, decreased or even stopped. You can also apply for Spousal Maintenance to be capitalised which means being awarded a lump sum or granted pension income instead of Spousal Maintenance.

The law recognises that it would be unfair to set an order for Spousal Maintenance payments in stone, particularly given the possibility that the parties’ circumstances can easily change. By way of example, a paying party may lose their job or the receiving party may come into significant wealth. It would be very rare for a condition to be put in place preventing the ability to vary a Spousal Maintenance Order.

Most Orders made for Spousal Maintenance to be paid can therefore be varied. In the first instance, the parties are encouraged to try and agree a variation between themselves, or with the assistance of a solicitor or mediator. Where agreement cannot be reached, the parties can apply back to the court for a variation of the original order. There is a wide discretion of the court to vary an order, and applications of this type do carry some risk as there is no guarantee what a Judge may do, whether increase, decrease or cease entirely.

In the case of Waggott v Waggott [2018] EWCA Civ 727, the Court of Appeal rejected the wife’s application to increase her Spousal Maintenance payments. The court in that case however accepted the husband’s cross-appeal on the joint-lives term, ordering instead that the maintenance come to an end in 3 years time.

Taking early legal advice on the prospects of successfully increasing or decreasing Spousal Maintenance payments is crucial, enabling the parties to make an informed decision.

Spousal Maintenance arrangements are made within the financial settlement process. An agreement can be made between the divorcing couple which means the matter can be resolved quite quickly without having to enter into stressful court proceedings.

If a couple is unable to come to such an agreement, they may need to apply to the court. The family court has the power to make a court order for Spousal Maintenance if it concludes that this is appropriate.

Receiving Spousal Maintenance is meant to help the lower-earning spouse meet their financial needs when their ex has considerably more money.

Any financial issues should be settled before the divorce is finalised and that’s why Spousal Maintenance is normally negotiated within divorce proceedings.

In theory, you could apply for Spousal Maintenance after divorce if you do not have a clean break order in place, but it would depend on your circumstances whether or not you have a valid post-divorce claim.

Spousal Maintenance can last for the parties’ joint lives with a lifetime order. This usually applies when there is a large difference in income, the parties are older and have been married a long time, one party has been out of work a long time, there are no realistic prospects of one party being able to support themselves or where there are young children, disabilities and other factors making it unrealistic to expect the recipient to return to work in the future.

Spousal Maintenance can also be set for a fixed term. A fixed-term order will cover a certain number of years and can be extendable or non-extendable. This is often applied where marriages have been shorter, or the children have flown the nest, or where it is anticipated that within a period of time the financially weaker party will be able to support themselves. The term can last until a specific event for example the recipient drawing down a pension or getting back into paid employment.

If there is a ‘bar’ on the fixed-term maintenance order the duration of the term that Spousal Maintenance is paid cannot be extended. This is called a non-extendable maintenance order.

In cases where the family court views that the claim should be kept open as a safety net for the recipient, it may put in place a nominal Spousal Maintenance Order. This is where a nominal amount (e.g. £1.00) is paid annually. Often the nominal order will be made for a limited time, for example, until the children come of age, or a set date in the future. It means if there is a dramatic change in circumstances, the recipient still has an open claim. However, this does not achieve a clean break and the potential for future income claims remains open.