A spousal maintenance payment is a payment made by one party to a marriage or Civil Partnership to the other party. The legal term for such maintenance payments are “periodical payments” and the court can make what is called a periodical payments order in favour of one party.
The question I am regularly asked during an initial consultation with a new client is “Will my husband have to pay me maintenance if we separate?”.
It is still usually the wife asking this question and in the vast majority of cases, it is the wife who may be entitled to maintenance payments from the husband as he will be the higher earner and the wife’s out-goings or needs cannot be met by her own income source. A wife can be ordered to pay the husband spousal maintenance if she earns considerably more than he does and he “needs” some ongoing financial support from her.
Considerations in allocating spousal maintenance
When considering whether to make such an order, the following is considered: –
- The income and earning capacity that each of the parties has or is likely to have in the foreseeable future, and, in the case of earning capacity, any increase in that capacity that it would be reasonable to expect a party to take steps to acquire.
- The financial needs, obligations and responsibility that each of the parties has or is likely to have in the foreseeable future, together with the standard of living enjoyed before the breakdown in the relationship.
- The age of each party and the duration of the relationship.
- Any physical or mental disability of either of the parties.
How much spousal maintenance will I get?
The other question which I am regularly asked is “how much will I be paid in maintenance payments?”. Although the quantification of child maintenance is governed by a statutory formula, no strict formula applies to the calculation of spousal maintenance. The payments are calculated by balancing the income/earning capacity of the parties against their respective needs. The overriding principle when considering whether spousal maintenance should be made is that of “needs”.
When considering whether spousal maintenance should be paid, we will look at the respective party’s incomes (from all sources) and their respective needs (or outgoings) to see if either of them has a shortfall. We must consider the parties “reasonable needs” and in many cases both parties may need to “cut their cloth” accordingly and not expect to have the same standard of living as they once enjoyed (unless of course one of the parties is a very high earner).
Once we have established that spousal maintenance should be paid, we must then consider how long those payments should be in payment. This really is subject to negotiation and the circumstances of each case. The court can order spousal maintenance to be paid during the parties’ joint lives, or until the remarriage of the recipient, or for a specific number of years (called a term order). Often the recipient will “need” a period of adjustment to enable them to increase their own income. Spousal maintenance may therefore be paid for a specific number of years to allow that party to increase their own income. The spousal maintenance may be payable whilst the children of the marriage are still minors and there is no realistic prospect of the recipient returning to work for the foreseeable future.
In brief, spousal maintenance is usually relevant in cases where one party earns considerably more than the other, and the needs of the recipient cannot be met from their own income.
Divorce & family lawyer, Wolverhampton