By John Loram | Divorce | February 2023

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The complete guide to spousal maintenance

When a marriage or civil partnership ends in England or Wales, as part of the financial settlement, the higher-earning spouse or partner may have to pay their ex-partner ongoing spousal maintenance payments.

‘Spousal maintenance’, as it’s called, is often misunderstood and there is a lot of confusion surrounding the topic. Who is entitled to spousal maintenance? Is it mandatory? How long do spousal maintenance payments last?

In this blog, we break down everything you need to know about spousal maintenance and dispel some of the many myths and misconceptions.

What is spousal maintenance?

Spousal maintenance is financial support that one spouse or civil partner pays to the other after they divorce or separate. This type of support can be ordered by a court or agreed upon by both spouses, for example following divorce mediation. Spousal maintenance is paid monthly but can be paid in one lump sum; thereby creating a “clean break”.

On separation, one spouse may not have sufficient income to meet their needs. The purpose of spousal maintenance is to help support the receiving spouse until they can become financially independent.

Clean break vs monthly payments

When it comes to a separation agreement, money is usually paid to the lower earning spouse in monthly spousal maintenance payments, but can be made in a lump sum, where the monthly payments are capitalised into a one-off payment.

A lump sum agreement is known as a clean break, where both parties agree to a reasonable financial settlement which cuts all financial ties between both spouses moving forward.

In situations where spousal maintenance is applicable but a lump sum payment can’t be agreed or afforded, monthly payments of spousal maintenance will be payable to the entitled spouse for a fixed term or until their circumstances change, such as they remarry or earn a higher income.

What is the difference between spousal maintenance and child maintenance?

Whilst spousal maintenance payments are often influenced by any dependent children involved in the divorce, it is not the same thing as child maintenance.

Child maintenance is statutory in England and Wales and required by law. The payments are specifically to support the care of the children. In contrast, spousal maintenance is a payment over and above child support, the main purpose of which is to meet the needs of the other spouse. There are no legal requirements for separated couples to initiate spousal maintenance in England and Wales and there is no formula that dictates how much is paid.

This is why it is often a complex matter requiring legal intervention or support from family mediation.

Who is entitled to receive spousal maintenance?

There are a number of factors considered when determining who is entitled to receive spousal maintenance. To work out if spousal maintenance is going to be payable, one has to look at how much money each spouse requires to cover their income needs and then how much income each spouse has from all sources i.e. their resources. If one spouse has a shortfall and the other spouse has a surplus - once any child support has been taken into account where relevant - then spousal maintenance may be appropriate.

How long is spousal maintenance paid for?

Spousal maintenance payments are typically made until the receiving spouse is able to support themselves financially, and the length of time that this is paid for can differ from case to case.

After divorce, the aim is for spouses to become financially independent as soon as possible, although this may not happen immediately and in some cases may not even be possible at all. Much will depend on the ages of the spouses, the ages of any children and the way family life was organised before divorce. However, as a general principle, the court will always want to consider whether it is possible to bring to an end any financial dependence between the parties after a divorce as soon as it is fair and reasonable to do so.

How is the amount of spousal maintenance calculated?

There is no set formula for calculating spousal maintenance payments, which can make the process of agreeing on a settlement very difficult. The amount and duration of spousal maintenance payments is most commonly determined by several factors, including each spouse’s needs and income, earning potential, the standard of living enjoyed during the relationship and whether there are any dependent children involved.

Are spousal maintenance payments guaranteed?

Whilst the court may order one spouse to make spousal maintenance payments to the other, these payments may be modified or terminated under certain circumstances.

If the recipient spouse remarries, for example, the maintenance payments stop by law. Consequently, if the recipient spouse moves in with a new partner, although this does not terminate maintenance automatically, the court may find that there is no longer a need for ongoing spousal maintenance and terminate the payments.

Maintenance payments may also be modified if there is a change in either spouse's financial circumstances. If the paying spouse experiences a significant decrease in income, for example if he or she loses their job, then he or she may apply to the court for a termination of or reduction in support payments. Likewise, if the recipient spouse's income increases, the court may order an increase in maintenance payments.

When do spousal maintenance payments stop?

Once a spousal maintenance agreement has been made, payments cannot be stopped until either the recipient remarries or the agreed maintenance period has run its course or the court has agreed to vary the arrangements because of a significant change of circumstances for either the payer or the recipient.

If you believe that circumstances have changed since the spousal maintenance agreement was made, you can mediate with the other party and discuss a potential change to the current arrangement. At Mediation First, we offer online mediation services to help people overcome problems such as these - we believe in communication over confrontation. Mediation is particularly appropriate for variations of spousal maintenance.

However, if a solution cannot be reached with mediation, an application to the court can be made to modify or terminate the spousal maintenance but , there is no guarantee that the court will accept the application and reduce/terminate the maintenance payments.

Resolve divorce settlements with mediation professionals

Divorce mediation is a process where a neutral third party helps the couple come to an agreement on all aspects of their divorce. This includes property division, child custody, support payments and spousal maintenance. The mediator does not make any decisions for the couple, bu t instead they help facilitate discussions and offer suggestions.

Mediation services make the separation process much simpler when compared with solicitors.

Settlements get resolved much faster, with less disruption and costs involved. If you need family mediation services to help guide you through your divorce, get in touch with the Mediation First team today and our team of experts can help support your separation.

FAQs

Are spousal maintenance payments taxable?

No. In the UK, HMRC will not consider spousal maintenance as part of your taxable income. Money you receive from your ex-spouse will have already been taxed as part of their salary, meaning this support will not be taxed a second time.

Can spousal maintenance be backdated?

In some cases, maintenance can be backdated. This means that payments can cover a period before the date the payment starts This may be appropriate if there was a delay in reaching a decision about spousal maintenance. Backdated maintenance can be paid either as a lump sum or as increased ongoing payments.

Can I decide to stop paying spousal maintenance?

The short answer is no. You can only stop paying spousal maintenance once the stipulated period of payment has ended, the recipient remarries or dies, or, you are able to have the original arrangement modified by the court.

What if I lose my job and I can no longer pay spousal maintenance?

It's a scary thought, but it's one that some people have to face. If you're currently paying spousal maintenance, and you lose your job, you may be wondering what will happen. Will you still have to pay spousal maintenance? And if you can't pay, what are the consequences?

If you're unable to pay spousal maintenance, you should contact your ex-spouse as soon as possible to let them know. They may be willing to work with you to come up with a new payment plan. If not, you may have to go back to court and ask the judge to modify the order.

If you don't make your payments, the court can intervene to enforce the original arrangement so it's important that you take action as soon as possible if you're having trouble making your payments.

If the recipient of the spousal maintenance is living with a new partner, do I still have to pay?

If you are paying spousal maintenance and your former spouse has taken up residence with a new partner, you can apply to the court to have your payments terminated. The court will consider several factors in making its determination, including:

• The length of time the new relationship has been in existence
• The financial status of the new partner
• Whether the new partner is providing any financial support to the spouse receiving maintenance
• The impact of terminating payments on the spouse receiving maintenance

In most cases, the court will find that if the recipient of spousal maintenance is living with a new partner, the payments should be terminated - as spousal maintenance would terminate automatically by law if the recipient marries a new partner. However, each case is unique, and you should speak with an experienced solicitor to discuss your specific situation.