What is spousal maintenance?
Spousal maintenance, also referred to as ‘spousal support’, ‘alimony’ or a ‘spousal periodical payment’ is a payment awarded by the courts to a former wife, husband, or civil partner by their higher earning ex-spouse to help with their living costs following divorce or dissolution. It is important to note that spousal maintenance is different from child maintenance; the latter is paid specifically to provide financial support to children following divorce or dissolution, not the ex-spouse.
Spousal maintenance will only be awarded by the courts if an ex-spouse cannot fully financially provide for themselves without support from their ex-partner. Spousal maintenance payments are normally paid periodically on a weekly or monthly basis (‘spousal periodical payment’). It may also be made as a lump sum. The amount of time that spousal maintenance payments last depends on the circumstances of each case.
Spousal maintenance payments may be made:
- Until the receiving ex-partner is able to financially support themselves, re-marries retires, starts receiving a pension, passes away, or the children are no longer minors.
- For a fixed amount of time, or
- For the remainder of the joint lives of the divorcing couple (a ‘joint lives order’).
Following an application for a ‘spousal periodical payments’ order, depending on the financial circumstances, the court may issue a ‘nominal maintenance order’.
What is a nominal maintenance order?
If the courts issue a nominal maintenance order, one ex-spouse will be required to pay the other a small amount of money to the other (e.g. 5p per year). Nominal maintenance orders are normally made where the person receiving maintenance has young children living with them, and they can support themselves but may not be able to in the future. They may also be issued where one party has strong promotion prospects at work while the income of the other party may be reduced due to illness or redundancy.
Nominal spousal periodical payment orders provide a ‘safety net’ potentially allowing the person receiving the payment to later apply to convert to regular spousal maintenance. In order to convert to a regular spousal maintenance order, the courts will want to see that the change in circumstances must not have been foreseeable (e.g. as was the case with the COVID-19 pandemic).
Who is entitled to receive spousal maintenance?
A spouse or civil partner may be entitled to spousal maintenance following divorce, dissolution, nullity, or judicial separation if they are unable to financially support themselves and their ex-husband, wife, or civil partner has a higher income. The courts will weigh up a number of factors when deciding whether to issue a spousal maintenance order, including:
- The duration of the marriage
- Whether each party can financially support themselves without maintenance
- Whether there are children from the marriage and who they are living with
- Whether one party gave up their career to support the other
- The income of both parties
- The ages of both parties – i.e. are you still able to develop your career?
How to apply for spousal maintenance?
How you apply for spousal maintenance will depend on whether you can agree with your ex-partner on spousal support between yourselves or if you need the court to do this for you.
If you cannot agree with your ex-partner on spousal maintenance, it is advisable to try mediation or another form of non-contentious dispute resolution to reach an amicable outcome. Mediation often allows separating couples to reach an agreement on spousal maintenance much faster and with less damage to the ongoing relationship than going through the courts. In addition, mediation keeps the costs associated with spousal support to a minimum.
If you cannot reach an agreement between yourselves or through mediation, you may need to apply for a spousal maintenance order through the courts. This may also be the case if your ex-spouse simply is not willing to discuss the matter. Depending on the circumstances of the case, the court may issue a spousal periodical payment order or a one-off final order.
You can apply to the courts for spousal support payments once your divorce petition has been filed in court. If granted, spousal maintenance will be back-dated. It is also possible to apply for ‘interim maintenance’ if you require immediate financial support.
How is spousal maintenance calculated?
Spousal maintenance is calculated by the courts on a case-by-case basis. As set out in the Matrimonial Causes Act 1973, the courts will consider a wide range of factors, including:
- Income, earning capacity, property and any other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future
- Financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
- Standard of living enjoyed by the family before the breakdown of the marriage
- Age of each party to the marriage
- Duration of the marriage
- Physical or mental disability of either of the parties to the marriage
- Contributions that each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family
- Conduct of each of the parties, if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it
The ‘one-third rule’, which was previously used to calculate spousal maintenance in England and Wales, is no longer used. The ‘one-third rule’ worked by adding the income of both partners together and then awarding the lower-earning partner one-third of the total less their own income. The courts in England and Wales now prefer to award spousal support on the basis of the financial resources and needs of both parties.
When does spousal maintenance stop?
Spousal maintenance payments may stop if or when the party receiving the maintenance:
- Can financially support themselves
- Re-marries
- Retires and starts receiving a pension, or
- Passes away
In addition, maintenance may also stop if:
- The person making the payments is no longer earning enough money to do so, or they become unemployed
- The person making the payments dies, or
- The children are no longer minors
What happens if your ex stops paying spousal maintenance as agreed
If your ex-spouse has stopped making spousal maintenance payments to you as ordered by the court, you may be able to apply for an ‘Attachment of Earnings Order’. This means their employer is legally required to make payments out of their salary to pay your maintenance and any arrears owing.