This is a question that Family Solicitors are so often asked, and for understandable reasons.
At the outset, it is important to distinguish spousal maintenance from child maintenance. Child maintenance is a payment from one parent to the other for the benefit of a child, whereas spousal maintenance is a payment from one spouse to another, typically to support the financially weaker spouse after a divorce until they can financially support themselves. This article will explore the latter.
In those cases where it is a factor, the amount of spousal maintenance and the length of time for which it is payable depends on the circumstances of each particular case. These might include how much the paying party can afford to pay, how much the receiving party needs, the standard of living enjoyed during the marriage, and when the receiving party can be expected to get back on their financial feet. Spousal maintenance is an ongoing financial burden which can significantly impact the payer’s disposable income, mortgage capacity, ability to obtain other credit, ability to contribute to a new relationship and so on.
Until relatively recently, the Court routinely made orders requiring spousal maintenance to be paid on a “joint lives” basis. This meant the spousal maintenance would end only on the death of either party, the remarriage of the receiving party, or the Court making a further order ending it. Such orders tended to be made in circumstances where the Court felt unable to identify a fixed point in the future by which the receiving party would have established their financial independence. Joint lives orders were also prevalent as a way of meeting the receiving party’s retirement needs in the days before the Court had power to make pension sharing orders.
Nowadays, “joint lives” orders are generally a thing of the past. In an age where women are achieving a career and family, spousal maintenance is more often viewed as a temporary, rehabilitative measure. The zeitgeist is, therefore, for the Court to order spousal maintenance for a fixed term. That term will either be extendable (in which case an application to extend it must be made before the term expires) or non-extendable. It is important to bear in mind that an order for spousal maintenance is variable, meaning either party may apply to increase, reduce, or end the maintenance while the order remains effective.
If you want the maintenance order in favour of your ex-spouse to end, and they don’t agree, you must apply to the Court for an order ending it. You should not just stop paying without first getting independent legal advice. If you suffer a short-term unexpected change in your income, it is possible to apply for a temporary suspension of the spousal maintenance order – but speak to your solicitor in the first instance.
An application to the Court to reduce or end spousal maintenance should be made only after a careful analysis of the merits and the risks. As with any Court application, the paying party should also explore whether an agreement can be reached with the receiving party outside Court. If so, a new order can be made reflecting their agreement, and the Court’s involvement can be limited to approving that order. Your solicitor should discuss the options with you. Whether or not you will be advised to apply to the Court depends on your chances of success and whether the likely cost of doing so can be justified.
In exercising its power to vary a spousal maintenance order, the Court will consider all the circumstances of your case, with the first consideration being given to the welfare of any child of the family who is under the age of 18. Of particular interest to the Court will be any change in circumstances since the original order was made. Such change might include a reduction in the paying party’s income or earning capacity (through ill health or retirement, for instance) and the needs of the receiving party, which may have changed depending on their circumstances, such as securing employment or being in a new cohabiting relationship. The Court will also be interested in whether the receiving party has taken appropriate steps to gain financial independence. Have they secured a job or undergone retraining? If not, why not? It is worth repeating that the purpose of spousal maintenance is to enable the financially weaker party to adjust to financial independence without suffering ‘undue hardship’ while they do so. That does not rule out some hardship and the Court will want to achieve fairness for both parties. Where the Court can put the parties on the road to self-sufficiency, it will. Of course, the intention and purpose of the original financial order will be highly relevant too. Your legal adviser will look at all the circumstances of your case in the round.
If you do decide to re-visit the spousal maintenance order, you may want to consider a capitalisation. This involves the paying party giving the receiving party a one-off cash lump sum in exchange for the spousal maintenance order ending. If you want the Court to consider a capitalisation, your application should say so. It goes without saying that you will need to have access to cash for this option to be viable. If you have the resources, it can represent a pragmatic solution. The amount of any lump sum will depend on the spousal maintenance payable under the existing order, whether the Court decides to vary the existing spousal maintenance order (in which case the lump sum may change), and the methodology preferred by the Court to calculate the capitalised sum. Again, there is no substitute for specialist legal advice.
If you need advice on contact arrangements for your children, please contact the family law team on 01732 747900 or email [email protected]
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.