Family Law Insights: Spousal Maintenance in England and Wales: Who Pays, How Much, and for How Long?

Eu-Fern Lai, Trainee Solicitor

Fern works across a range of matters, including family, employment, higher education, civil claims for rape and sexual assault, and historical child sexual abuse.

When seeking to separate from your spouse or civil partner, questions may abound about how much you may be entitled to financially in divorce. While there are a number of different financial remedies available to divorcees, the remedy most commonly at the forefront of one’s mind may be spousal maintenance, also known as ‘periodical payments’.

What are the different types of spousal maintenance?

Generally, there are four types of order that a court can make on a spousal maintenance claim:

• A clean break order, where the court will terminate all financial obligations between the parties at the time of divorce, as long as it is ‘fair’ to do so and the court is satisfied that the parties can meet their own needs without spousal maintenance.
• A term order with an extendable option, which is an order of spousal maintenance for a term of years usually determined by the time needed by the receiving party to adjust to financial independence. Such terms will only be extended in exceptional circumstances.
• A term order with no extendable option, such that the spousal maintenance stops at the end of the term with no ability to apply to extend.
• A joint lives order, which is a form of spousal maintenance that is open-ended. This is payable until the death of either party, remarriage of the receiving party, or as varied by the court. Such orders are now increasingly uncommon, unless circumstances warrant it. Courts now tend to be keen to achieve a clean break where possible, and so usually prefer a term order.

Who pays spousal maintenance?

Under the Matrimonial Causes Act 1973 (“MCA”) and Civil Partnership Act 2004 (“CPA”), courts have the power to compel either party to a marriage or civil partnership to make periodical payments to the other party. These powers are usually crystallised by way of an ‘order’, a formal court document that is legally binding on the parties involved.

In practice, spousal maintenance is typically paid to the financially weaker party to the divorce or separation. What ‘financially weak’ means can be dependant on a variety of factors, but they are guided for the most part by section 25 of the MCA for marriages, or Schedule 5, Part 5 of the CPA for civil partnerships (“s25 MCA” and “Sch 5, Pt 5 CPA”).

How do courts decide the amount and length of spousal maintenance?

s25 MCA and Sch 5, Pt 5 CPA are commonly referred to as a ‘checklist’ of factors that courts must consider when determining the sum and length of periodical payments. Some of these factors include:

• As a first and primary consideration, the welfare of any child below the age of eighteen;
• Income, earning capacity, property and other financial resources which each of the parties have or is likely to have in the future;
• Financial needs, obligations and responsibilities that each of the parties have or is likely to have in the future;
• The standard of living enjoyed by the family before the marriage or partnership breakdown;
• The age of each party to the marriage or partnership, and the duration of the same
• Any physical or mental disabilities of either party;
• Contributions of each party to the welfare of the family, including specifically contributions made in terms of homemaking and generally caring for the family;
• The conduct of each party if the court believes it would be inequitable to disregard it.

Other considerations relevant to the checklist

Against this backdrop of checklist factors, the judge in case of SS v NS (Spousal Maintenance) helpfully provided some clarification.

Any award of periodical payments is ‘properly made’ when, on the basis of the evidence it is shown that choices made during the marriage have generated ‘hard future needs’ on the part of the claimant. This includes the choice to have children, which is considered a pivotal factor. If any hardship does not have a causal link to the marriage or partnership, the periodical payments should be aimed at alleviating said hardship.

In general, the spousal maintenance should set out to terminate once the claimant is able to transition into financial independence as soon as it is ‘just and reasonable’. This is because courts are obliged to consider whether it would be appropriate to exercise its powers in terminating once and for all any financial obligation each party may have toward the other – after all, divorce or separation is intended to be the severance of ties both on a legal and personal level, and thus the ‘clean break’ principle remains an important consideration.

How much spousal maintenance am I likely to receive?

Determining how much spousal maintenance you might receive is no small feat as the surrounding law can be a complex area requiring professional assessment. The factors laid out above are non-exhaustive, and courts will likely have regard to a number of other case- and fact-specific considerations.

In essence however, the rules in financial remedy proceedings in England and Wales will generally mandate that a judge have thorough consideration of all issues relevant to determining such payments. While the above information has been provided as a general guide for those seeking to apply for spousal maintenance, it is always advisable to consult with a solicitor for specific advice pertaining to your individual circumstances.