Spousal Maintenance Criteria: Family Court Approach and Relevant Case Law
Atef Elmarakby
Founder & Managing Director
What is spousal maintenance
Spousal maintenance refers to financial support one former spouse provides to the other, based on need. It applies when the receiving spouse cannot meet their expenses through their own income or resources. This support covers the spouse’s needs only and does not apply to the children. Its purpose is to support the less wealthy spouse financially after divorce. Spousal maintenance often applies when one spouse leaves work to become a homemaker while the other earns for the household. After divorce, the homemaker usually faces greater financial hardship than the breadwinner, making support necessary. The court may also grant maintenance if one spouse’s living standard will drop significantly after the divorce. The court may deny a spousal maintenance if they deem that the spouse applying for support does not need financial help or if the other spouse does not have the means to provide financial assistance to their ex-spouse.
Spousal maintenance criteria
Factors that will be considered when deciding spousal maintenance:
- Duration of the marriage
- Whether each party is working (employment)
- The age of the parties
- Who is looking after any children of the marriage
- If both parties manage financially without spousal maintenance
- The ability to work again/ pursue studies or a career
- The lifestyle during marriage
What the courts will not consider:
- The grounds for the divorce
- Who contributed to what during the marriage
- Whose decision it was to have children/ pause the career
Whether support from other family members or inheritance is available
Different types of spousal maintenance
Clean break – most preferred since it instantly cuts off any financial ties between the parties. What is clean break? A clean break means a financial award (sum of money) given to a divorced spouse.. A significant quantity of capital must be available, maybe through the sale of a home, a savings account, or any other assets. The courts will press for a clean break if there is a good chance of one.
Term order – this applies to those who were divorced after a brief marriage, typically less than five years. The duration and amount of the maintenance are determined by the court. One party may appeal the order if they are not happy with it. The appeal usually happens when the recipient obtains a better position at work or achieves financial independence
Joint lives order – spousal maintenance for a lifetime. The court grants a joint lives order when it foresees that one party will likely never achieve financial independence. This may occur if the dependent party hasn’t worked for a while and finds it challenging to find employment or pursue a profession. This can be especially true if the divorced couple has young children. In that case, the primary carer would likely be unable to work or provide for themselves financially for a number of years because they would be caring for the kids full-time. The other party may appeal the order to either lower the support or dismiss it altogether when the children grow up and no longer need as much care or if the receiving party’s circumstances change.
Nominal order – If both parties maintained their quality of life following the divorce and were financially independent, this order would be issued. In this case, the judge can grant a nominal order to one of the parties to protect them against unforeseen events that would hinder their capacity to satisfy their financial obligations in the future. The mother usually benefits as the primary carer, if children are involved. When both partners co-parent, they can agree on the order together.
How long does spousal maintenance usually last
This depends on the type of order given and on the circumstances of the parties after the divorce, as every case is different. It could be ordered only for a short period of time to enable the dependent party to be financially independent. Or it could be a lifelong maintenance which lasts for a lifetime, unless the receiving party remarries or enters into another civil partnership or if any of the parties passes away. The court will look into different factors of both spouse’s lives before deciding how long to grant spousal maintenance for.
One factor the court considers is whether the financially weaker party can work or find employment, or if doing so would be difficult. In such cases, the court often grants maintenance for a longer period, possibly for life. However, the paying party can later ask the court to end or change the order if circumstances change.However, if it is foreseeable that the weaker party may be able to support themselves in the future, though they cannot do so now, then the court may grant a maintenance order for a shorter period of time, could be from two to five years. This would usually occur if the divorced couple had not been married for a long time.
How is spousal maintenance calculated
No set formula exists for calculating spousal maintenance. The court looks at the receiving party’s financial needs and the paying party’s ability to contribute without harming their own finances. To decide both the necessity and amount of support, the court considers the following factors:
- The standard of living during the marriage
- The financial situation for both parties after the divorce
- The employment status (how much they make if they are employed or if they are not employed then if they would be able to get a job)
- If they have children (who is the primary caretaker or if they are co-parenting)
- How long the marriage lasted
- Age of the parties
Family court (cases)
- SS v NS [2014] EWHC 4183 (Fam)
The court gave guidance on the principles relevant to an application for spousal maintenance. The application was approved. The following principles were relevant to the application:
- The duration of the marriage (6 years) and the presence of children were pivotal factors
- An award should only be made by reference to needs
- If the needs were not connected to the marriage, the award should generally be aimed at alleviating significant hardship
- A term order should be considered unless the payee would be unable to adjust without undue hardship
- If the choice between an extendable term and a joint lives order, the statutory steer should militate in favour of the former
- Material standard of living was relevant but not decisive
- Examining each line item in the applicant’s income budget was important, but it was also important to look at the overall total and determine whether it reflected a fair share of the respondent’s available income that should go towards supporting the application.
- The applicant may receive essential support from the respondent’s basic income, while discretionary expenses come from a capped percentage of bonuses.
- To discharge a joint lives order, the court should review the original assumption that predicting future financial independence was too difficult.
- If the choice between an extendable and a non-extendable term was close to being even, it would typically be in favour of the economically weaker party.
- Dx v JX [2022] EWFC 19
Termination of spousal maintenance after the payer had a decrease of income. The receiving party had a change of circumstances were she was able to adjust without undue hardship to the termination of spousal maintenance.
- AJC v PJP [2021] 1 WLUK 566
The court grants nominal spousal maintenance to allow for major, unforeseen changes linked to the marriage – not unrelated events like a global pandemic, as in this case.
SOURCES USED
Ultimate Guide to Spousal Maintenance | Mediate UK
Am I entitled to spousal maintenance? | Woolley & Co (family-lawfirm.co.uk)
Spousal Maintenance: What You Need To Know – (familydivorcelawyer.co.uk)
SS v NS (Spousal Maintenance) | Westlaw UK
AJC v PJP | Westlaw UK
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