Financial Claims on Divorce

Maintenance

What is maintenance?

Maintenance (also referred to as periodical payments) can be paid for the benefit of spouses (male or female) and is termed spousal maintenance and child maintenance (for the benefit of a child of the family).

Maintenance orders are available on divorce (same sex or heterosexual) and on the dissolution of a civil partnership.

Following your divorce or dissolution, you may agree or be ordered to support your ex-spouse. The amount and duration of spousal maintenance that you’re required to pay will either be agreed by you or will be decided by the court. Spousal maintenance will end automatically on the remarriage of your ex-partner or the death of either of you. Alternatively, spousal maintenance may only be paid for a term (a number of years following which the obligation ceases unless it is capable of being extended).

What factors are considered?

When the court decides whether or not to make a spousal maintenance order it will consider a number of factors. These include:

  • The needs of both of you
  • Your respective earning capacities
  • Your age
  • Your standard of living
  • The duration of your marriage/civil partnership

There’s no set formula and it’s up to the court to determine the amount of maintenance based on the recipient’s reasonable needs.

A clean break

Maintenance is always variable, either upwards or downwards, and can be linked to the CPI/RPI. If the payee becomes unreliable then maintenance can be enforced through an attachment of earnings order. Another option, if the payee comes into capital resources in the future, is to render a clean break following a capitalisation of your maintenance claim. This is a more affordable and attractive outcome. The court is obliged to consider whether a clean break can and should be made. More often than not it’s just not an affordable option or may not be desirable at the time, but it could be a future possibility.

Child maintenance

Unlike spousal maintenance where payment is dependent on a number of factors (and so may or may not be payable, depending on the circumstances of the case), an absent parent has an automatic obligation to maintain their children through the payment of child maintenance. As with spousal maintenance, child maintenance is normally paid monthly and usually until the child concerned reaches 16, or finishes full time secondary education, whichever is later. Jurisdiction over child maintenance in the main lies with the Child Maintenance Service (“CMS”). However the court does retain residuary powers including top up orders and school fees orders. In the event that the amount of child maintenance to be paid cannot be agreed upon between the parties, an application can be made to the CMS for a calculation of how much the absent parent should be paying each month.

The calculation of child maintenance is formulaic.

To find out more about spousal and child maintenance speak to our team of experts who can advise you on your next steps.

Contact our Family Law specialists

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