Spousal Maintenance Payments: Essential Considerations

Spousal maintenance is the regular payment from one individual to their former partner to meet their income needs. It applies to those who are, or have been, married to each other or in a civil partnership and is often sought and ordered where there is financial disparity between the parties’ incomes.

A couple may wish to negotiate spousal maintenance themselves; however, it can also be ordered by the Court. 

An important reminder

Spousal maintenance is highly discretionary and there is no automatic entitlement to it. Recent cases have confirmed that reasonableness, which is synonymous with fairness, is the ‘sole criterion for assessing maintenance’.  The amount to be paid will depend on the recipient’s “needs” which are highly subjective.

What are the types of spousal maintenance orders that can be made?

MPS

‘Maintenance Pending Suit’ is temporary financial support during financial remedy proceedings. Recent case law has emphasised that the purpose of MPS is to stabilise the situation and ensure that both party’s needs are met until the final hearing. The Court will take note of the standard of living during the marriage, but MPS will not necessarily seek to replicate it.

LSPOs

A ‘Legal Services Payment Order’ requires one party to cover the other party’s legal costs. The Court will usually expect an applicant to have tried all other options, such as obtaining a legal loan, before making this type of order. Recent case law has reiterated that the Court can order the payment of past legal costs for a party’s current legal team, but not their previous legal team.

Final Order

This is a continuing financial arrangement where one party continues to pay the other following the completion of divorce. In most cases the payments will have a limited term and will not last forever. Maintenance might be set to end on a particular date, or an event such as the youngest child starting or finishing school, or the family home being sold.

Variations

This sees any existing spousal maintenance order being varied or terminated. The person applying to change maintenance must show that their circumstances have changed to justify a change in payments. For example, if the paying person has lost their job, then payments may need to be reduced or stopped. Recent case law has confirmed that ‘change does not have to be significant but must be material’ and that a party applying for variation should have tried to mitigate their position.

Capitalisation

Spousal maintenance can be capitalised into one lump sum payment, and the party in receipt of this payment will not be able to make future claims for maintenance, or to vary the amount. This can be a more desirable option because it provides certainty and allows a couple to achieve a clean break.

Whether spousal maintenance is appropriate should be considered on a case-by-case basis by an experienced family lawyer. If you require assistance with a spousal maintenance matter or would like further family law advice, our highly experienced team can provide tailored advice and support for you and your family.