Spousal Maintenance: what one party to a marriage has to pay to another in divorce proceedings.
Spousal Maintenance itself, or periodical payments as they are known, are only available from the decree absolute. But they can be backdated to the application. So it’s important in terms of starting the case off properly that the petition prays for spousal maintenance from the start so that you can backdate any order.
Spousal maintenance can only last for joint lives or to the date that the receiving party remarries. It cannot continue beyond the expiry of any term fixed or event fixed for its termination unless varied.
The criteria for spousal maintenance is as follows:
Fairness and the desireability of a clean break.
A spouse’s needs (usually the wife’s) or reasonable requirements are the touchstones.
In order to establish these it’s helpful to have budgets showing what the family income and expenditure was prior to separation and also one for expected needs after separation.
There are various sorts of principles underlying the spousal maintenance issues, but you need to contrast between a needers divorce and a sharing divorce.
Basically, the principles are:
- Standard of living in the past is very important. If the assets available prior to the separation meant that the parties were wealthy, then they can expect to have a wealthy spousal maintenance settlement at that level – or even greater – after the divorce.
- What contribution has been made in the past? Did the wife help the husband to get a great success? Did the husband make a stellar contribution to the welfare of the household?
- Distribution of capital. If a property adjustment order is made, ie capital sums are transferred to one spouse, that may result in a reduced maintenance to the party who received that capital sum. Capital payment may be attributed to notional income.
- The earning capacity of the spouses now or in the future. Section 25 (2) (b) applies. The court can order “incentive” payments to a spouse, ie a fixed rate of maintenance not to be varied downwards, even if the wife gets a job.
- Deliberate alienation of the income or assets of one party. The court can easily order all of the monies moved to try and improve one party’s position to be the subject of an award to the other party.
- Default on undertakings or promises. For example, if a spouse has promised a car and has failed to deliver on that promise for three years. Thorpe J, in one case, ordered £7,000 per annum to be added to the periodical payments for the wife as the husband in that case failed to provide a new BMW 3 Series every 3 years.
- The Child Support Formula often applies to provide an underpinning of the minimum standard of maintenance and there is a tension between the amount of maintenance paid to the children and to the spousal maintenance, often.
- Servicemen’s pay. The public policy position is that servicemen’s pay is to be protected to enable them to carry out their duties and that can have an effect on spousal maintenance, particularly in normal households.