Whether a party will be ordered to pay or receive spousal maintenance is often one of the first questions a client will ask when getting divorced.
What is maintenance?
The court’s power to order periodical payments (commonly referred to as a maintenance order) derives from statute and can be made for the benefit of one party and/or their children.
English judges have a wide discretion that is guided by the statutory factors in section 25 of the Matrimonial Causes Act 1973, or the equivalent provision in the Civil Partnership Act 2004.
How does the court decide?
When reaching a decision, the court has to give first consideration to the needs of any minor children of the family and then keep in mind a commonsense checklist of factors set out in s25.
The most relevant factors the court must consider are the parties’ needs, their income and “earning capacities”, their ages, the duration of their marriage and any physical or mental disability either party may have.
The court must also consider whether an immediate “clean break” is possible (that is, there is no ongoing financial commitment). To the extent maintenance is payable, it should only be paid for so long as is required for one party to stand on their own two feet.
How much will I get/will I have to pay?
There is no statutory formula for quantifying spousal maintenance; indeed, the Court of Appeal once described the quantification as “an art and not a science”.
In SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam), Mr Justice Mostyn (now retired) said: “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 principles apply”.
He set out a list of further considerations that deal with both the quantum of periodical payments and the length of time such an order should be made for. The relevant factors as to quantum are as follows:
