The concept of spousal maintenance, formerly known as alimony, has developed from ecclesiastical law and when husbands were responsible for their wives’ debts.
Spousal maintenance is now ordered under Section 23 of the Matrimonial Causes Act 1973 and is designed to allow a spouse to adjust to the ending of the marriage without undue hardship. There has to be causal link between the marriage and the needs (that require spousal maintenance). So, for example, that there are children of the family.
Spousal maintenance can be for…
- “Joint Lives” – so until either the payor or the payee dies. This is usually ordered where a couple divorce in their later years and where the Court are faced with an older spouse who will have a problem obtaining paid work.
- A “term” or period of time – to allow the payee to adjust to the ending of the marriage by moving towards independence through say employment. The term or period of the maintenance can be extended. Any application for an extension has to be before the term/period ends. Otherwise it is too late and no application for an extension may be made. If there is a Section 28 (1A) Matrimonial Causes Act 1973 direction (included within any order) then no application can be made to apply for an extension in the term of the maintenance order.
On an application to vary a spousal maintenance – Section 31 of the Matrimonial Causes Act 1973 – the Court can be asked to consider whether any future maintenance should be capitalised. A lump sum payment will then end the obligations between husband and wife for payments to be made to achieve a clean break between husband and wife.
A “nominal” maintenance order is an order which provides for the payment say of a £1 per year. It keeps alive the right of the payee to make an application for an increase should his or her circumstances change say through illness.
Spousal maintenance can be directed to be paid in staged amounts decreasing when a child(ren) go to primary school and then secondary school. The spousal maintenance can then be reduced to a nominal maintenance order to provide a “safety net” for the payee spouse (should for example the payee become ill and unable to work).
Remarriage will automatically lead to a termination of spousal maintenance. The position if the payee cohabits is not so clear cut and the Court will look at cohabitation as a factor in any application under Section 31 Matrimonial Causes Act for a variation of spousal maintenance.
The case of SS -v- NS in 2015 appears still to be good law and set out the following principles…
(i) An award should only be made by reference to needs, save in a most exceptional case where it can be said that the sharing or compensation principle applies.
(ii) Where the needs in question are not causally connected to the marriage the award should generally be aimed at alleviating significant hardship.
(iii) In every case the court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable. A term should be considered unless the payee would be unable to adjust without undue hardship to the ending of payments. A degree of (not undue) hardship in making the transition to independence is acceptable.
(iv) If the choice between an extendable term and a joint lives order is finely balanced the statutory steer should militate in favour of the former.
(v) The marital standard of living is relevant to the quantum of spousal maintenance but is not decisive. That standard should be carefully weighed against the desired objective of eventual independence.
(vi) The essential task of the judge is not merely to examine the individual items in the claimant’s income budget but also to stand back and to look at the global total and to ask if it represents a fair proportion of the respondent’s available income that should go to the support of the claimant.
(vii) Where the respondent’s income comprises a base salary and a discretionary bonus the claimant’s award may be equivalently partitioned, with needs of strict necessity being met from the base salary and additional, discretionary, items being met from the bonus on a capped percentage basis.
(viii) There is no criterion of exceptionality on an application to extend a term order. On such an application an examination should to be made of whether the implicit premise of the original order of the ability of the payee to achieve independence had been impossible to achieve and, if so, why.
(ix) On an application to discharge a joint lives order an examination should be made of the original assumption that it was just too difficult to predict eventual independence.
(x) If the choice between an extendable and a non-extendable term is finely balanced the decision should normally be in favour of the economically weaker party.
The Courts do now seem to be moving away from ordering joint lives maintenance unless there are unusual circumstances. Term maintenance appears to be more the norm. So perhaps no longer the meal ticket for life ….
Spousal maintenance is a complex area of the law. So please if you want legal advice about this issue or other financial issues please contact us via email or by calling 01273 684666 for an appointment. We do offer a fixed fee appointment for £100 plus VAT at 20% (total £120.00) and details of this are also on our website.