Maintenance: a short ride on the alimony pony?

Having just caught the end of that episode of Friends in which Janice talks about “riding the alimony pony”, we at CFLP thought that it might be a good time to focus on the part that maintenance plays in a financial settlement on divorce or civil partnership dissolution.

Maintenance, or “periodical payments” (or “alimony” in the USA), is one of a number of tools that the law carries to enable people to divide up their finances and property on relationship breakdown. Periodical payments are regular payments made by one former spouse/civil partner to the other, usually each month. The intention is usually to assist the receiving party to pay living expenses. If you want to know more about the tools the law uses to make a comprehensive financial division, have a look at our factsheet which you will find here.

There are two types of maintenance: child maintenance and spousal maintenance. Child maintenance is usually dealt with by an application of the child support formula to the income of the parent who lives apart from the children for more of the time. You can find the formula at www.cmoptions.org. The formula does not apply to non-resident parents earning more than £104,000 per year, in which case the court is also able to make orders. Spousal maintenance is available to former spouses and civil partners, but is not available to people who have lived together without being married or in a civil partnership. Spousal maintenance is separate from child maintenance, and isn’t dependent on having children. Its aim in most cases is to enable the less economically successful former partner to meet their lifestyle needs, or those of the family, by payments from the other former partner if they do not have enough income themselves.

Spousal maintenance orders always last for a length of time. If maintenance is agreed or ordered to be paid on a “joint lives” basis, it lasts until either party dies, or the person receiving the regular payments remarries. Maintenance can also be agreed or ordered to be paid for a specific term, which may be as little as a few months or as long as until the youngest child finishes tertiary education, or until retirement. A term may be expressed to be non-extendable, in which case there will be no opportunity for the recipient to argue that payments should not end at the contemplated time. If the term is not stated as non-extendable, it is up to the person receiving the periodical payments to apply to the court for an extension to the timescale if needed, with a good reason, before the timescale expires.

All maintenance orders are variable, and it is open to either the payer or the recipient to ask for payment levels to be altered if circumstances change. There would be grounds to make a variation application if, for example, a maintenance recipient starts cohabiting with a new partner, although there is no principle of law that says maintenance payments from a former spouse should finish in those circumstances. There is also the opportunity for either party to apply to have the regular payments turned into a lump sum instead, if there is enough cash to enable this to happen. This is called capitalisation, and lawyers or the court will usually look at tables developed by actuaries to establish the level of payments that need to be made to enable the recipient to have enough money to last for the remainder of the order’s duration.

It used to be the case that joint lives maintenance orders were made in the majority of divorce cases, particularly where there were young children. However, recent case law has indicated that court practice is changing, and it is by no means certain these days that the court will award maintenance at all, let alone for joint lives. A recent High Court case has established that the court has an obligation to consider whether a term should be imposed on a maintenance order, to enable the court to bring the parties’ financial obligations to each other to an end as swiftly as possible. Another recent High Court case made it clear that the recipient must need maintenance for it to be ordered; maintenance cannot be used as a method simply of sharing resources. It is clear that maintenance orders are harder to justify that they used to be. The courts now seem to want a good reason before ordering periodical payments beyond a reasonably short term, perhaps to enable the recipient to retrain or gain skills for entry/re-entry into the employment market.

Interestingly, this shift in perspective is occurring as a new generation of judges is coming through to the High Court. Many of these judges are working women who find the idea of joint lives maintenance to be anachronistic at a time where men and women are educated equally, the demands of parenthood affect both genders (particularly after divorce) and many families have two wage-earners. Nevertheless, it is firmly written in statute that the court must consider all the circumstances of the case before making an order for financial division on divorce, and at CFLP we understand that every case is unique: just because joint-lives maintenance is not appropriate for all does not necessarily mean that it won’t be in your case.

Do give us a call if you would like to talk through any of the issues raised in this blog.

*This blog is written for informational purposes as a free public resource. Nothing in this blog or elsewhere on this website should be construed as legal advice. Although we welcome discussion, please note that CFLP is unable to give legal advice in response to comments left under this article.

Join the discussion 22 Comments

  • Steve Bottomley says:

    I have a consent order to pay maintenance for my daughter that has been in force for 15 years. She will be 18 this year and is looking to continue her education by enrolling on an OU course to be completed whilst at home. The consent order states that maintenance be paid until she ceases full time education. Does an OU course count as such? If not, can I finally end my maintenance that I have paid without fail since she was three?

    Regards

    Steve

  • cflp says:

    Steve, we can’t answer individual queries on the site – give us a call if you want on 01223 443333.

  • Jana says:

    Hi,

    Thank you for the article about maintenance, it does answer quite a lot of questions. As you said – child and spousal maintenance are two separate issues and the child maintenance is quite straight forward, even if the parties don’t agree on it themselves. There is one part of spousal maintenance I can’t seem to find anything on anywhere – what if the ex-partner wants to claim spousal maintenance later in life? These days, even if there was no spousal maintenance awarded at the point of divorce, there is often a formula that allows an ex-partner to keep an ‘open door’ to spousal maintenance by way of nominal spousal maintenance until death or re-marriage of the person. What are the chances of this, lets say three, five, or ten years after the divorce? Is this ‘lifestyle’ that is usually referred to when asking for spousal maintenance, a lifestyle that the couple has had those three, five or ten years ago, or a lifestyle they had since they divorced? Lets say one partner has re-married, has a new family with a couple of new children. The other partner stays home and claims state benefits. But the state benefits change one day and instead of looking for an employment, the nominal spousal maintenance comes to mind? Of course, each case is individual, but what are the general rules for spousal maintenance in the future?

    Thank you & Kind Regards,

    Jana

  • cflp says:

    Hi Jana

    If maintenance claims aren’t dismissed by the court in a final financial order arising from divorce, they technically remain there until remarriage (the remarriage of the person who wants to make the claim!). As you suggest, this can come as a shock when someone makes an application for maintenance later. Pure divorce does not get rid of financial claims. However, generally the longer you leave it from divorce, the harder it is to relate existing needs for income to the previous marriage, which tends to limit late claims to an extent.

    If there is a nominal maintenance clause in a court order, the person looking to activate that and turn it into “real money” can apply to court for a variation of that maintenance order as long as it is “live” (ie within term if there is one, and the recipient hasn’t remarried). The applicant will need to show a change of circumstances from those that existed at the time the order was made to justify the change.

    The court approaches the maintenance variation issue by considering the factors in section 25 of the Matrimonial Causes Act (have a look at our financial remedy principles factsheet for info about these) including things like needs (including the needs of the payer’s new family, for instance), both parties’ incomes, and earning capacity (whether the applicant could be helping her/himself more) to decide what new level of maintenance is fair in the changed circumstances. In principle, this can happen three, five, ten years after the initial order was made, and sometimes longer. The court can, if it wishes to, put a term on any new order it makes or terminate the maintenance obligation altogether, sometimes on payment of a lump sum.

    This doesn’t constitute individual legal advice as we do not know your circumstances, but we hope this helps. Do give us a call on 01223 443333 if we can help you more specifically.

    CFLP

  • Andy says:

    Hi..Does Spousal Maintenance always end if the other part remarries ? Regards Andy

  • cflp says:

    Hi Andy. Spousal maintenance always ends on the remarriage of the receiving party. Best wishes, CFLP

  • Andrew Blyth says:

    Hi, I have been paying maintinance for 38 years to my ex wife and for my daughter till she attained the age of 17 that was 19 years ago. I now pay £1 per week which has been going since my second daughter was born (second Marriage) . It is a joint lives order can I get it stopped I have recently found out that my ex wife had a partener and they bought a house together,she recieved half of that house when it was sold after they spit up, she had to take him to court to do this.

  • Dan says:

    If there is provision for spousal maintenance within a divorce settlement, and the monthly amount is set to increase by RPI every year, who ensures that this increase is applied? Is it the responsibility of the spouse’s solicitor to provide an updated payment schedule every year?

  • cflp says:

    Hi Dan. Interesting question – give us a call if you’d like to talk it through. Thanks.

  • Joanne bailey says:

    Could anyone advice me , my divorce settlement seems to be very confusing , this is my Oder in the settlement .
    The respondent ( ex) shall pay to the applicant periodical payments at the rate of £1000,00 per month payable monthly (with credit of any sums payable pursuant to a child support assessment in respect of ( my son ) the first payment will be due on 17 January 2012 and shall continue until 30th December 2012 during the joint lives of the parties or cease upon her earlier remarriage , the parties have liberty to apply to review this amount .
    Not sure if this means my £1000,00 should finish in December because it states joint lives ? I presume this is until our deaths ?
    Please can anyone advise my solicitor is utterly useless .

  • Ian P. says:

    In the article you refer to a ‘recent High Court case’. Could you specify which case so can read up on this please.

  • Jay cole says:

    Am I entitled to spousal maintenance after just 9 1/2 years of marriage

  • Jane Ryland says:

    My husband has been paying spousal maintenance for 15 years. At time of the divorce his first wife elected not to take pension rights but had a morgage free home,£10,00.00 and maintenance for life. This monthly maintenace was reduced 6 years ago when his business was in trouble.
    My husband would like to take early retirement, and take his occupational pension of around £10,00.00 a year . We have both worked hard and saved to enble this to happpen. We will not be able to afford the £500 month. His first wife receives her state pension.
    Any advice would be appreciates.

  • Trees says:

    Hello, I have a consent order for spousal maintenance of £570 per month which will end in November 2014. There is no bar on the order and I wonder if it’s possible to extend this order or increase it. We had been married 36 years and I am retiring in November. I still have a son at school who is 17 and tax credits/child benefit terminate when he is 18 in September. I have a pension share when I retire. My exhusband said he was retiring when the consent order was made, but he is still working. He is 60 and I am 59. We struggle every day to put food on the table and I have retrained to work part time at minimum wage. The house is up for sale as per consent order but the thought of leaving it fills me with despair. Is it wise to vary the spousal maintenance order and what would be the likely cost of doing so. Your advice would be very much appreciated.

  • shelley says:

    I have been married for 28 years and my husband left to live with another woman and both parties are in receipt of state pension plus disability pension plus a small private pension. Would I be entitled to claim any personal maintenance in view of the fact that I am 59, have been out of the work place for 12 years because of being a carer to this person and have therefore greatly reduced my chances of earning a decent livable wage due to age and absence from the workplace. Would it be unreasonable for me to request periodical payment of £100 a month to help with the adjustment period until such time as I can find well paid employment, meet another partner or reach state pension retirement age. I will have funds after the sale of the house but I need to preserve this for my future and don’t wish to live off of all that I have work for for 28 years with this person. I would welcome comments.

  • Trees says:

    Is it possible to have a reply to my question made in March,

    Thankyou
    Trees

  • cflp says:

    Dear Trees,
    I’m afraid that we can’t give legal advice in response to comments left on the website. If you would like to make an appointment to see a partner, please give us a call on 01223 443333. Alternatively you may be able to get some free legal advice from the Citizen’s Advice Bureau.
    CFLP

  • Michelle says:

    Is Spousal Maintenance still payable if the “paying spouse” lives outside of the UK in another country? If they do not pay will they be made to return to the UK?

  • Jacqui says:

    In my divorce I have spousal periodical payments to protect me until my daughter leaves full time education and in addition I have child maintenance which is calculated by the CSA. I have just received a phone call from the CSA to say my ex doesn’t have to pay anything now because he doesn’t have an income! I have managed to ascertain that he took redundancy and I’d like to know if my spousal maintenance order protects me and I can now claim spousal maintenance or a lump sum?

  • MG says:

    What if the parties had a clause written into the financial agreement that maintenance will continue even after the receiving party re-married? Can this be enforced?

  • Peter says:

    It has to be the most damning aspect of financial orders. My divorce was difficult, my experience of dealing with courts was awful. Judges seem to weigh up your life in 30 minutes and condemn you for in my case a decade of maintaining a former partners life. I truly can’t seem how this is allowed to happen especially when both people work and earn similar salaries. In the end I chose to live overseas to avoid what had become a stressful and constant reminder of my ex! Scandalous legal swines!

  • Peter says:

    I left the UK as a result of the court orders. I found the payments impossible to pay, unfair and the absence of a clean break simply ruins your future life. I had one solicitors letter, quoting some pish but ignored it. I’ll probably be snookered when I come back to the UK but I’ll cross that bridge when the time comes. Legally I’m not obliged any longer and the order cannot be enforced. I pay all the money into an account for my daughter so that she can use it at 18 instead of my ex treating herself.

Leave a Reply