When a couple separates, whether one party is entitled to claim spousal maintenance from the other is a frequent concern. Several factors must be considered:
- The length of the marriage
- Whether each party is working
- The ages of the parties
- Who is looking after any children from the marriage?
- Can both parties manage financially without spousal maintenance?
It’s important to understand that spousal maintenance, also known as spousal support, refers to financial assistance provided by one spouse to another following the breakdown of a marriage. This support is specific to married couples and is distinct from child maintenance.
The circumstances under which spousal maintenance might be awarded can vary widely, reflecting the unique nature of each marriage. A typical scenario involves a long-term marriage where one spouse has foregone career development to manage the household while the other has become the primary breadwinner. In such cases, there is a compelling argument that the homemaker is entitled to financial support—spousal maintenance—following the dissolution of the marriage, especially if they are unable to achieve financial self-sufficiency through other means.
Who is entitled to spousal maintenance?
To establish whether you are likely to be entitled to spousal maintenance, you should ask yourself the following questions:
- What are your financial needs and income potential? Can these needs be met without the support of your ex?
- Have you been married for a long time and given up work to support your spouse or family by becoming a home maker?
- Are you of an age where establishing a career to deliver the kind of lifestyle you have been used to would be difficult?
- Would you be financially better off having a financial clean break and lump sum from your ex rather than ongoing maintenance, which could be at risk if they lose their job or pre-decease you?
- Are you prepared to take your case to court if your ex will not agree to spousal maintenance?
- Are you planning to re-marry? (If you do, you will lose your right to spousal maintenance.)
As is common in family law, each case is unique. Therefore, it’s crucial to seek advice from a divorce and family lawyer regarding your eligibility for spousal support. They will assess your specific circumstances and provide guidance on the prospects of success in your situation.
How to apply for spousal maintenance
Many couples arrive at an informal arrangement regarding spousal maintenance through negotiation or mediation. This approach can lead to a swift resolution with minimal conflict, thereby keeping legal costs to a minimum.
If your ex-partner is unwilling to negotiate a spousal maintenance agreement, you may need to petition the courts to review your case. The court will then determine whether you are eligible for spousal maintenance. If they find merit in your claim, they will issue a court order mandating spousal maintenance payments from your ex-partner.
How is spousal maintenance paid?
There are three main options for how spousal support is paid:
- Capitalised spousal maintenance: where the receiving spouse gets a bigger share of capital assets, e.g., a house or savings, while the breadwinner, who has more potential to generate income and wealth on an ongoing basis, takes a smaller share.
- Ongoing spousal maintenance: where maintenance is paid in monthly instalments as income to cover the living costs of the spouse receiving it.
- A combination of the two: the receiving spouse gets a bigger share of capital assets and ongoing maintenance payments to help cover their needs.
The most appropriate option for your circumstances will depend entirely on the specifics of your situation, so it’s advisable to seek expert legal advice before addressing this with your spouse.
How is spousal maintenance calculated?
Determining spousal maintenance in England and Wales is not based on a standardised formula; instead, it’s assessed on a case-by-case basis.
If a court is tasked with determining the appropriate level of spousal support, it will consider various factors, including the financial resources of each spouse and the reasonable needs of the spouse requesting support.
Similarly, when negotiating spousal maintenance voluntarily as part of a divorce settlement, these general principles should guide the process to reach a fair agreement.
How long does spousal maintenance last?
Spousal maintenance in England and Wales can be awarded indefinitely or for a specified period, depending on the circumstances.
In long-term relationships, courts may grant ongoing spousal maintenance for life, while in shorter marriages, fixed-term spousal maintenance is more common. In voluntarily agreed arrangements, the duration of spousal maintenance can be negotiated, although it’s advisable to consider what a court might award to ensure a fair agreement.
A key point to note is that if the recipient of spousal maintenance remarries, their entitlement to maintenance typically ends.
Do you have to pay spousal maintenance during separation?
During a separation, there is no legal obligation to provide financial support to each other (except for meeting the needs of any children). However, if you or your spouse require financial assistance during this period, you may be able to agree on interim financial support while finalising the details of your financial settlement.
Why is spousal maintenance denied?
Spousal maintenance would not be granted if a court determined that the spouse applying for support does not require assistance with their reasonable expenses or if the other spouse lacks the means to provide financial support to their ex-spouse.
What is the spousal maintenance one-third rule?
The ‘one third rule’ is an outdated approach to determining spousal support in England and Wales. Under this rule, both partners’ incomes were combined, and the lower-earning spouse was awarded one-third of the total income minus their own earnings.
In modern practice, spousal support in England and Wales is calculated based on the means and reasonable needs of the ex-spouses, as discussed earlier.
Contact us about spousal maintenance
At DLS Solicitors, our experienced divorce lawyers can help you achieve the most favourable arrangement for spousal maintenance and other financial matters during your divorce. We customise our approach to suit your unique situation, whether that involves negotiating amicably with your spouse or taking a more assertive stance when necessary.
