This very informative article was written by LittleMrMike.
This article was revised in May 2016 and the law is as stated on that date. It applies solely to England and Wales.
At the outset, an apology.
In this article it is assumed that the payer of spousal maintenance will be a man and the recipient a woman. It is perfectly possible in law for a divorced wife to pay maintenance to her ex-husband, and now that same sex marriages are legally possible, we will have men paying SM to men and women to women; but the fact is that the great majority of payers are men, and most recipients are women, and this article merely recognises this reality.
For the sake of completeness, it is also perfectly possible in law to have to pay maintenance to a civil/married partner of the same sex.
When a marriage breaks up, there is always the possibility that one party will have to give some financial support to the other, either for a limited time, or for an indefinite period.
This financial support may be for the benefit of the other spouse, for the children of the marriage, or both.
This article is not concerned primarily with financial support for children. By and large, this is dealt with by statute, and has its own rules. It is deal with by the Child Support Agency (CSA) or its successor, the Child Maintenance Enforcement Commission (CMEC). The Government is constantly tinkering with this subject, and it’s therefore in a constant state of flux; but suffice it to say that the obligation to pay child support, where it exists, is a first charge on the payer’s income; and sometimes it can happen that, from the point of view of the payer, he cannot afford to pay any more than the child support; and in such cases, no spousal maintenance (SM) will be payable at all, or only at a nominal rate (£1 per annum). The subject of nominal orders, and the reasons for them, will be dealt with later.
The technical name for spousal maintenance is periodical payments but it is more usually referred to as maintenance, alimony, or various other quaint Old English expressions which will not be included in this article, for reasons of public decency.
From the point of view of the prospective recipient of SM, she may be tempted to ask, if my ex can afford no more than nominal SM, and I can’t work, what am I going to live on, then? The answer, of course, (or part of the answer) is social security benefits.
If you claim benefits, it is very important that you claim as soon as possible. Benefits will be awarded from the date of the claim. It is very difficult to get benefits paid in relation to any period before the date of the claim. The subject of benefits is dealt with in more detail later in this article.
Husbands may sometimes have to pay spousal maintenance to a wife who has to rely on benefits to top up her income. If, say, the wife’s entitlement to benefit is £100 a week, and the husband pays £20 per week in spousal maintenance, the wife’s benefits reduce to £80 per week, so she is no better off. Unfortunately for husbands, that is not regarded as a reason why he should be excused from paying maintenance.
Hot tip: in low income cases it can be advantageous to both parties to fix the rate of SM at a figure which entitled the recipient to claim a very small sum in benefits. In the example in the previous paragraph, if the husband paid £19 per week the wife could claim £1 pw in income support/JSA. This matters because the wife can claim the so-called passport benefits, which are discussed later.
There is no doubt that SM is a subject that generates more bitterness, buggeration, bloody mindedness than just about everything else put together. It is not hard to see why. You can more or less guarantee that any thread on the subject of SM will usually run to two or three pages.
One of the main reasons for this state of affairs is that, almost certainly, the conduct of the parties will not be taken into consideration by the Court. In theory it is certainly possible; but in practice it happens once in a blue moon. This in turn leads to moans from ex-husbands that it was the wife who wrecked the marriage, so why should she draw benefits from a marriage which she wrecked? And there are ex-wives who complain (sometimes with perfect justification) that it was the husband’s loutish and inconsiderate behaviour that led to the breakdown, so the Court should show its disapproval of his conduct by making a generous SM order.
But this almost certainly will not happen and if you are thinking about bringing conduct into the equation it is very important that you take legal advice, because the issue of conduct can get you into a very expensive court case.
Another reason why SM can generate so much bitterness is that it that it can be payable for a long period – in some cases one could, for example, be paying maintenance for 20 years for a 10 year marriage. In general, the courts will not impose long term obligations for short marriages. But where the potential recipient has a child or children, her earning capacity may be reduced for some time while the children are still dependent. The same principle can apply where the recipient is disabled and has little or no prospect of securing employment.
The Law Commission has recently made recommendations to address this issue, but don’t put your shirt on it.
The Law (as at February 2017)
The first thing to bear in mind is that a spousal maintenance order has to have a beginning, and has to have an end.
1. An order for spousal maintenance cannot be made before decree nisi;
2. It may sound like a statement of the obvious; but a spousal maintenance order cannot be backdated any further than the date when a claim for SM was made;
3. An order for SM cannot take effect before decree absolute.
It is possible for a potential claimant to apply for maintenance pending suit (MPS) which is interim maintenance designed to tide the potentially dependent spouse over until a permanent order can be made. There is a short section specifically on this subject.
An order for spousal maintenance must end on the death of either of the former spouses. It is, however, possible that a widow who is receiving SM at the time of her husband’s death could claim benefits against his estate under other legislation; namely the Inheritance (Family Provision) Act 1975. This is outside the scope of this article, but do please note that there are time limits for making a claim and prompt action is essential. Legal advice is strongly recommended here.
An order for SM will always end on the re-marriage or civil partnership of the recipient. There are no exceptions. Re-marriage of the payer does not of itself end the SM, but it can be relevant to the question of how much has to be paid.
The above summarises the statutory requirements. But the Court has power to make an SM order which is limited in time (say for five years) or until the occurrence of a specified event (for example the retirement of the payer) and – most controversially – the cohabitation of the recipient.
If a court imposes an order which is limited in time, it is open to the recipient to apply for an extension. Note that such an application must be made before the order expires. Provided that this is done, the application can be considered after the deadline has passed. But once it has passed, it is too late to apply for an extension.
The Court has the power, when imposing SM for a term, to stipulate that no application for an extension can be made. This is known in the trade as a ‘Section 28 bar‘ because the statutory authority for it is Section 28 of the Matrimonial Causes Act 1973 (MCA1973).
An order for a fixed term is likely in the following circumstances:
· A short, childless, marriage;
· Where the Court is of the view that the dependent spouse will, or could reasonably be expected to be, independent and self-supporting once the term has expired.
The Court is under a duty to consider whether a clean break can be achieved, either immediately or at some time in the future. But that duty is to consider it, and no more. The courts are understandably reluctant to impose a limit on the maintenance where there are very young children involved. In these circumstances it is more likely that the courts would impose an order which lasts for the joint lives of the parties or the remarriage of the dependent spouse, leaving it open to the payer to apply for variation at a later date.
At this stage it is at least pertinent to make the comment that an order for SM can be varied (up or down) or cancelled altogether as a result of a change in circumstances. However, in the case of joint lives orders, it is important to make the point that it means exactly what it says: it will last until the dependent spouse re-marries or either spouse dies, unless the Court subsequently varies it. And the onus of justifying the variation will be on the party who is claiming it.
The writer has a definite impression that judges tend to be reluctant to discharge an SM order altogether, and the reason is quite simple; a discharge is irreversible. The Court is likely to end an order altogether only where it is satisfied that the wife can adjust without due hardship to the termination of the maintenance. There are two sets of circumstances, however, where an application for a total discharge of a maintenance order has a reasonable chance of succeeding.
1. The first is where there is a pension split and the post retirement incomes of the parties are, if not equal, at least sufficiently close to avoid the need for a balancing payment. In the writer’s view, potential payers of SM where there is also to be a pension split should consider an express provision in the order that SM should end when the order takes effect.
2. The second is where the payer is willing to offer a lump sum in lieu of maintenance. For obvious reasons, this is more likely in the case of older spouses. The technical term for it is capitalisation, and is dealt with later.
But where a wife goes out to work, then even if the incomes are pretty close, a court may be more likely to opt for a nominal order rather than an outright discharge.
The Statutory Criteria
A court is specifically directed to have regard to various factors/criteria which are set out in Section 25 of the Matrimonial Causes Act 1973 and are known in the trade as Section 25 factors.
In summary, they are:
· The income and resources of both parties including any resources they are likely to acquire in the foreseeable future;
· The financial needs and obligations of both parties;
· The standard of living enjoyed by both parties prior to the breakdown of the marriage;
· The ages of the parties and the duration of the marriage;
· Any physical or mental disability of either of the parties to the marriage;
· Contributions made by either party to the marriage;
· The conduct of the parties, unless it would be inequitable to disregard it;
· Any benefits which either party may lose by reason of the dissolution of the marriage.
The above is only a summary and reference should be made to the full text of the Act if need be.
In practice the needs of dependent children always have a high priority, and their needs, and those of the parent with care, will usually be the Court’s first consideration.
As previously noted, conduct is rarely taken into account unless perhaps it has a bearing on the financial position of the parties. Cases where conduct has affected the outcome include attempted murder, serious physical violence, and one party dissipating assets to fund an addiction. The sheer paucity of such cases would suggest extreme caution is required before raising conduct as an issue - except in really serious cases.
Maintenance Pending Suit (MPS)
MPS is designed to tide over a dependent wife until a full financial order takes effect.
It can take effect from the date of the petition, and must end on the grant of a decree absolute.
MPS is normally of little use where the potential payer is on a low income. The reason for this is that any MPS awarded will be less than the wife’s benefit entitlement, and so any MPS will be deducted from the benefits. Yes, this does contradict what was said previously, that husbands are not allowed to use the availability of benefits as an argument for reducing maintenance, but since MPS is intended as a short term measure, nobody seems to bother.
In addition, of course, there are other considerations of a non-legal nature. An application for MPS could potentially cause friction between spouses who are unlikely to be feeling in a charitable mood towards the other. That said, it can certainly be useful where the potential payer has a reasonable income and the potential recipient is broke.
It has been noted that a discharge of a spousal maintenance order is irreversible.
Circumstances can arise where the Court is satisfied that, on the facts before it, there is no case for spousal maintenance, but fears that circumstances might arise where the issue of spousal maintenance might have to be re-visited.
There are some judges who are known to insist on a nominal order where there are dependent children involved.
The other circumstance where a nominal order might be ordered is where the wife is earning but is in her late forties or beyond.
Men on the wrong end of a nominal order obviously see this as a Sword of Damocles over their head, but our experience on Wiki, such as it is, suggests to applications to increase a nominal order are in practice, rarely encountered.
Are there any maxima or minima?
There is (in theory) no limit to the amount of SM which can be ordered as long as the payer can afford it and as long as it does not result in an unacceptable imbalance between the post-divorce incomes of the former spouses.
The issue of whether there should be a level of protected income for the payer is not one which arises often, even if because people on the breadline can’t afford litigation. In practice it is generally accepted that a payer’s income should never be reduced to a level which he would receive if he were on Income Support or Jobseekers Allowance. From the point of view of saving the public purse, there is no advantage in reducing a man’s income to a level where he would be better off unemployed.
But in any event, the stark fact is that a payer whose earned income is reduced to income support levels would be worse off than someone who was out of work and received the same income on benefits; this is because someone receiving income support or JSA would get the so-called passport benefits like free prescriptions.
There is no presumption that the post-divorce incomes of the former spouses should be equal – even as a starting point.
In practice it would be rare for a man to be ordered to pay more than 50% of his net income in combined SM/Child support. The very few instances where we have encountered a higher percentage seem to have the following common factors:
· Three or more children (therefore 25% in child maintenance); and
· The payer has a new partner who is well-to-do and contributing to the household, especially if the payer lives in her home;
· The payer has enough to be able to live on what is left!
It only remains to say that the so-called one third rule (namely that the dependent wife should receive one third of the joint incomes) is no longer good law, although in practice many SM awards come close to this figure.
There follows some advice for the payer whose income includes bonuses or non-contractual overtime. We have seen cases where, in the halcyon days, people would get substantial bonuses on top of a basic salary. Then came the credit crunch and people found themselves having to make payments out of bonuses that were not paid any more, or not at the same rate. To avoid this, it is recommended that the maintenance be fixed by reference to basic salary and a percentage of the bonuses on top. If the bonus disappears, this avoids the expenses of a variation.
How much should I expect to pay then ?
Well, this is really the 64,000-dollar question, isn’t it? If the author could answer that one, he would be a millionaire overnight.
But it’s obvious, isn’t it? If you are an average person on a normal wage you will not pay as much as a Russian oligarch, a pop star, or a Premiership footballer.
If you are a payer, you must be left with enough to live on. If a full order cannot be made (i.e. an order that would be adequate to maintain the wife) then the payer should only be ordered to pay what he can afford and the wife must claim benefits to top up her income.
In practice what it is likely to happen is that both parties will prepare detailed budgets, or estimated budgets if appropriate and those budgets will assume, for the time being, that no SM is paid. Then both parties may assume a given level of SM, say £200 a month, and see what the effect would be. The parties may then make calculations on the basis of a payment of £180 p.m., £190 p.m., £210 p.m. and £220 p.m., and the judge will then decide what is fairest for both parties.
It is here that we see the crucial importance of the Form E; the author’s advice on a Form E (for what it is worth) is:
· Always tell the truth;
· Always make sure you support your statement with receipts;
· Always make some allowance for contingencies;
· Always make some provision for recreation, hobbies, holidays, etc.;
· Hot tip – always keep for future reference a copy of your Form E and your spouse’s too, if you can. You may (probably will) need to apply for a variation at some stage and then the original Form E could be crucial evidence. This is most important advice.
End of the ' meal ticket for life ' ?
At the time of writing, there are indications that the Court's attitude towards spousal maintenance may be changing.
Previously, the Courts have been reluctant to look too far into the future , and have tended to make lifetime orders simply because the Court does not know, and cannot guess, what the financial position of the parties might be in, say, ten years' time. Therefore, they will make an order for life, but leaving it up to the payer to apply for a reduction at a later stage if circumstances change. There is an over-riding provision, however, that a Court cannot discharge an order unless satisfied that the recipient can adjust without undue hardship to the termination of maintenance.
A recent Court of Appeal decision ( Wright v Wright ) concerned a wealthy husband who had been ordered to make substantial maintenance payments to his ex. He made an application to reduce the payments as he would not be able to afford them on his retirement.
Almost certainly, he would have achieved a substantial reduction on his retirement, but the trial judge made an order phasing out the maintenance over 5 years ending on the payer's 65th birthday. As an aside, I'm grateful to see that the judge seems to have agreed with my view that a phased withdrawal of support is often desirable.
The wife appealed, but her appeal was thrown out on the grounds that she was capable of work and should go out and get a job like everyone else. In addition the Court of Appeal offered the useful guidance that a dependent ex wife should seek work when the youngest child turns 7.
The writer is not completely convinced that the meal ticket for life's " doom is writ " but perhaps in the future we may see a change in the attitude of the Courts so that Courts will make an extendable term order ending when the children are off the wife's hands, and it will be up to the recipient to make out a case for an extension, rather than up to the payer to justify a termination of the maintenance.
If this is true, recipients of SM who have the benefit of a term order must remember that an application for an extension MUST be made before the end date is reached.
A Few Remarks about Benefits
In low income cases, benefits can be extremely important. Two into one does not go, and in many cases there simply is not enough money around to support two households; and, where this applies, social security can make up the difference.
In cases like this, the availability or otherwise of social security benefits can make the difference between getting by and going under.
Of course, people who are poor enough to need benefits cannot afford legal advice, and not all lawyers are qualified to give it. It is here that Citizens Advice comes into its own; most of their advisers have a very good knowledge of the subject. And the advice, of course, is free of charge. Things do not get much better than that.
It may be a mistake to assume that social security is only for people who are in straitened circumstances, and ignore the subject as a consequence. There are some benefits which are paid regardless of income; and others, notably tax credits, which can be paid even if the parties have an income which is some way above the breadline.
For these reasons, in most cases, benefits are likely to come into the mix in most divorces - simply because it’s possible to envisage cases where the joint incomes of the parties before divorce would not entitle them to benefit, but afterwards, when disposable incomes have been reduced, then benefits can help to cushion the fall.
This is obviously important from the point of view of the spouse who is finally the weaker, but even from the point of view of the payer, it is important in practice. Benefits augment the income of the supported spouse and this can reduce her need for SM.
It has been mentioned earlier in this article that claiming promptly is very important. It is very difficult to get payments backdated.
When a married couple live together, their incomes are lumped together for the purpose of assessing entitlement to benefit. This may, and often does, mean that the couple are disqualified from most, if not all, of the means-tested benefits.
But when a couple split up, the result can be, and often is, that a wife who could not have claimed benefits before the split, can become entitled to those benefits after it (because the husband’s income is no longer taken into account) and this can be crucial. In particular, the wife can become entitled to tax credits, which can make an enormous difference to her financial situation.
It follows that, as soon as a couple split up, the issue of benefits should be addressed vigorously. It is possible to get advice as to the likely position if a couple separate.
Earlier in this article we promised to mention passport benefits. Nothing to do with going abroad; the term is used to describe a series of helpful measures which are available to claimants on means-tested benefits. These can include free prescriptions, free dental treatment, sight tests and free school meals.
One issue that can sometimes be important about benefits and divorce is capital. As a general rule-of-thumb, any capital over £16,000 will disentitle a claimant from means-tested benefits, and between £6000 and £16000, benefits are gradually withdrawn. So if the payment of a lump sum is an issue in divorce, bear in mind the possibility that if the recipient gains on the swings, she may lose on the roundabout.
Capital which is represented by the value of a house in which the claimant lives is usually disregarded. The policy objective, of course, is to force people who have capital to spend it down before benefits kick in when the capital dips below £16,000. This needs to be borne in mind when the issue of lump sums becomes an issue in divorce.
If you have capital, and it’s at a level which affects your benefit, then it’s always an option to spend it. So, for example, you could pay off debts, buy a new cooker if your old one is falling to bits, or even go on a modest holiday in sunny Clacton ; but what you couldn’t do, for example, is to book a world cruise on the Queen Mary 2 or buy yourself a Rolls Royce Silver Shadow. If you do that, you won’t go to jail, but the social security will just assume you still had the money.
WARNING: At the moment, the subject of benefits is undergoing a radical overhaul and there is a definite possibility that this information could be, or could become, out of date. Make sure you check with a CAB or Welfare Rights organisation.
We are told that something like 40% of people living together are not married. The reasons for this state of affairs are no doubt many and various, and no doubt many people who cohabit are not legally in a position to marry anyway.
It is no part of this article to go into the reasons why a state of affairs that used to be described, even in the author’s lifetime, as “living in sin” and caused no end of tut-tut-tutting, is now a commonplace.
But it causes all sorts of problems when spousal maintenance is concerned. The main issues are:
· Exactly how does one define cohabitation? When does a mere friendship become something more?
· Should the fact that a recipient of spousal maintenance is cohabiting (a) end her maintenance altogether, or (b) reduce it?
· Where a payer of SM forms a new relationship, does that affect his liability, and in particular if there is a child born into the new family?
· Can a partner of a man paying SM be forced to disclose her income?
· Does a first wife have any claims against a new partner?
Many recipients of spousal maintenance bitterly resent the fact that, if they re-marry, their SM ceases. Therefore, they will go to considerable lengths to disguise a new relationship. This is a theme which recurs on Wiki time and time again.
So where do we start? At the outset, one point must be emphasised: child support is not affected by the re-marriage or cohabitation of the payer. Liability to support one’s children depends on the fact of parenthood, not marital status.
What constitutes cohabitation anyway?
There is no one-size-fits-all answer to this. The situation must be looked at as a whole, but the following factors may help to make matters clearer:
· Do the parties live together under the same roof?
· Is there a sexual relationship between them?
· How long has the relationship lasted?
· To what extent do they take part in activities as a couple?
· To what extent are financial arrangements shared? Do they have joint accounts? Is the house in joint names? And, the clincher:
· Has a child been born into the relationship? If this is the case, it will be really difficult to argue that the parties are not cohabiting.
Should cohabitation of the recipient end spousal maintenance?
This is a controversial subject, to say the least. But before attempting to answer it, one observation can usefully be made.
That is that cohabitations, like marriages, can and do break down. Divorce is often followed by a second marriage; but if a second marriage ends, for any reason, the wife cannot revive the SM order against husband number 1. A second marriage, therefore, really is for better or for worse, to use the time-honoured expression.
But on the breakdown of a cohabitation, the woman has no rights against her former boyfriend. There have been suggestions that this could change, but there is no suggestion that a change is on the horizon.
It’s possible that a wife could walk out on her husband and start cohabiting with a very wealthy man, and be living in considerable comfort, with a lifestyle which far exceeds that enjoyed by the first husband. Most people would perhaps agree that it would be unfair to expect a man to pay financial support to a former spouse who is far better off than he is.
The general principle applied by the courts is that there is an expectation that the new partner will make a contribution towards household expenses. Depending on the circumstances, this could have the result, either of reducing the liability of the payer to pay SM (because to a greater or lesser extent the needs of the supported spouse are being met by the new partner) or increasing it (because the needs of the payer are partly being met by the new partner and this may free up more of his income for SM).
But should cohabitation of the supported spouse end her right to receive SM?
Orders do, on occasions, provide that SM ceases if the recipient cohabits for a period of, say, twelve months. In the writer’s view a total and final termination of SM on cohabitation is not appropriate; and even where it is clear that the supported spouse enjoys a higher standard of living, reduction to a nominal order is a more appropriate option.
Needless to say, in practice, it is quite common for a payer to allege the ex is cohabiting, and for the recipient to deny it. That is a question of fact for a court to resolve if need be.
In practice the author has noted that very often the new partners tend to complain about SM more than the long suffering payers do.
One question that is often asked is, can a second wife be required to support the first? The answer here is definitely no. A first wife has no claim against the income or assets of a new partner.
Another issue is whether a new partner can be forced to disclose his or her income. The answer is probably no – but there is a risk that, if he or she does not do so, the Court may draw its own conclusions, and they might just possibly make an assumption which is higher than would have been awarded if the Court had known the facts.
One of the most controversial aspects of cohabitation is where the payer of SM forms a new relationship, and maybe even has children by the new partner. It is hard to advise when there are conflicting judicial statements.
As we have seen, it is possible that the re-marriage of the payer could lead to a modest increase in the maintenance, on the basis that his living expenses may be met wholly or in part by the new partner. This is particularly likely to be the case if the payer moves in to the new partner’s house.
But what if the new partner is poor as the proverbial church mouse?
We do sometimes come across cases on Wiki where a payer has formed a new relationship and argued for a reduction/discharge of the SM on the grounds that he has obligations to his new wife/partner and can no longer afford to pay SM, or not as much.
In our limited experience such applications tend to receive a very frosty response from the judge, on the ground that the payer voluntarily took on new obligations and cannot use those voluntary decisions as an excuse to end or reduce his obligations to the first wife.
One can see the point of that, but a lingering doubt remains. If the payer had married a rich partner, that could be used as a reason for increasing the maintenance. So then, why should a new relationship with a poor partner not result in a reduction? Nevertheless, the only advice that can safely be given to anyone who pays SM and is thinking of forming a new relationship would be, don’t assume that you can use your newly acquired obligations to your second family as a reason for reducing your obligations to your first.
Is it reasonable to expect a supported spouse to go out to work?
To some extent, yes. The wording of the legislation does definitely place an obligation on the supported spouse to take reasonable steps to maximise her income.
There are many divorced wives who find it distasteful to rely on SM and prefer to go out and earn a living. Not all do, of course, and there are many cases where it would not be reasonable to expect a supported spouse to work, at least for the time-being.
It is unfortunate that judicial practice appears to vary throughout the country. There are some judges who do not expect supported spouses to take full time employment, and who will only attribute a very limited earning capacity to a spouse who has raised children.
Where there are no children involved then the courts would normally expect a supported spouse to seek work. It is possible that she may be granted SM for a limited period to ease the transition to independence.
The question is sometimes asked is why a supported spouse receiving SM should want to work at all; where is the incentive, when her earnings will reduce her maintenance or even extinguish it?
The writer can well understand why an ex-wife may not be too keen to take work merely to relieve the burden on an ex-spouse whom she may not particularly like. He has argued in the Wiki forums that a supported spouse who is willing to go out and support herself should always be better off than would have been the case if she had stayed at home. He has also argued that, in most cases, a sudden and complete discharge of an order for SM which has been in place for many years is too severe and that a gradual reduction spread over a number of years might be more humane.
According to members of the “Magic Circle”, which in this context is not a professional organisation for magicians (though it is) but rather the kind of solicitor who will be consulted by very wealthy clients (of either sex), one of the most frequent belly aches is that the payer has a job which, to be sure, is highly paid, but often risky, enormously demanding and time consuming, who asks his solicitor why his wife should be placed on an equal financial footing with her ex and doesn’t have to do anything except collect the monthly cheque.
There has been much discussion on the issue of the disincentivising effect of long term SM. What is the point in expecting a wife to go out to work if she is no better off? But there are one or two words of warning that the writer would give based on his long association with Wiki.
That is, SM is only as good as the person who pays it. To a greater or lesser extent, spousal maintenance is insecure. It is not uncommon for payers to lose their job or have wages cut. To rely on maintenance alone can be very risky.
There are many men who will go to just about any lengths to hide assets, and resort to all sorts of dirty tricks to avoid or reduce their liability to pay SM, and in many cases it is not easy for the supported spouse to get the evidence to prove it. Spousal maintenance can easily develop into a long (and potentially expensive) war of attrition and it makes practical sense for a supported wife to have some income over and above maintenance.
And, unfortunately, spousal maintenance can easily sour relationships between the former spouses, which can matter if there are children involved.
In these difficult times, we come across many cases where a paying spouse has lost his job. In such circumstances, it may be reasonable to expect the paying spouse to share any redundancy package to cushion the blow; but almost certainly the maintenance would be reduced to a nominal figure. In circumstances like this, having an independent source of income is only common sense.
It seems clear that, if the supported spouse can claim benefits, and is legitimately entitled to claim them, she should do so, even though it might reduce the SM.
Capitalisation of maintenance
It can sometimes be an option for the recipient to receive a lump sum to end the payer’s liability for SM.
The first point is perhaps obvious; the payer must have the means to make the payment.
The second is that it is much more likely to be an option where the parties are elderly. The payment should, ideally, be for such a sum as will give the supported spouse more or less the same income for the rest of her life as she would have received under an SM order.
The third is that it is possible for the Court to order a pension split as an alternative to a lump sum.
Capitalisation may be an attractive option for a court where a payer of SM is erratic in making the payments.
In all cases, however, capitalisation is an option that carries risks for both parties, and legal advice should always be sought. A payer of SM may consider it worth his while to pay £xx to get rid of an order for SM, but the Court might order him to pay more than he wants.
Furthermore, if it is the recipient wife who wants to capitalise, the husband ought always to consider the possibility of the wife’s re-marriage, which would have ended the SM anyway. The case of Dixon v Marchant (http://www.familylore.co.uk/2008/01/dixon-v-marchant-fair-decision.html) illustrates the problems.
A possible way in which the payer of a capitalised sum can protect himself against the ex-wife’s early re-marriage is to insert a clause in the event of re-marriage of the supported spouse within a given period.
For the future, the writer does not expect anything much in the way of initiatives from the Government – any government – to change the system very much. But the increasing popularity of cohabitation, and the advent of same sex marriages, should ensure the subject continues to be plagued by controversy.
Can a Maintenance Order be varied?
Maintenance orders can last a long time – sometimes for life. It’s more-or-less inevitable that the circumstances of the parties, both payer and recipient, will change over time.
So there must always be provision for variation, and so indeed there is.
However, the subject of variation is one on which the writer has somewhat strong views; and his main complaint is that in most cases to roll out the full panoply of FDA, FDR and Final Hearing is over-egging the pudding and unnecessarily complicated and therefore more expensive than it needs to be. The Court cannot use a variation application to redistribute capital (unless it chooses to capitalise a maintenance order as previously mentioned) and the only issue is whether the level of SM is appropriate – something which could easily be resolved by the parties sitting round a table with a mediator. The result can be that applications for variation can be disproportionately expensive, and also risky.
Risky, because it is possible for the Court to award costs against the loser, and because the outcome might well be different from what was intended. The Court will review the whole position afresh, so that it’s possible to apply for an increase and get a reduction, or vice-versa.
It is not unusual these days for maintenance clauses to incorporate provisions for index linking, i.e., the maintenance is increased every year to reflect the rise in the cost of living. It may seem strange for someone who paid SM for 28 years to suggest that it might be to the advantage of the payer to agree to such a clause.
The reason is this. Sooner or later, if the SM stays at the same level, it will be eroded by inflation and become out of date. This could expose the payer to an application for an increase. If this can be resolved by negotiation, all well and good, but if it gets to court, the risk of costs is real.
However, a word of warning. Most cost-of-living clauses index the rise in SM to the RPI. This is no longer appropriate when just about everything these days is linked to the lower CPI.
To succeed in a variation, it is necessary to demonstrate a change of circumstances - hence the advice to retain a copy of the original Form Es.
In the writer’s view (for what that may be worth) it is not easy to get a reduction in SM, and the reason is that the recipient will have become used to the income, and judges are reluctant to reduce or discharge it unless the payer is clearly suffering hardship.
One issue that has arisen with increasing frequency in these difficult times is what happens if the payer of SM loses his job, and this would be high on the list of anyone’s FAQs.
Obviously, each case depends on its own facts, but here are a few pointers.
If you are the payer:
· Don’t anticipate redundancy and stop paying because of the possibility that you could be made redundant at some time in the future.
· It’s usually necessary to look at the make-up of the severance package. If it includes payment in lieu of notice, this is still wages/salary and in principle can be divided.
· As regards compensation for redundancy, the writer sees no reason why this could not be split as well, as a “parachute payment” for both parties. In general, a payer is not expected to fund maintenance by recourse to savings. If the payer had substantial capital, it might be reasonable to expect this, but only for a shortish period.
· The advice often (and rightly) given in Wiki forums is not to stop paying, but to apply for a variation. In general terms this advice is correct. But one must be realistic; if you have no money coming in, you can’t pay, and any arrears which build up will almost certainly be written off.
· Apply for benefits as soon as you become entitled to claim. It is very hard to get arrears backdated.
From the point of view of the recipient:
· Most of what has been said is relevant to the position of the supported spouse.
· If the payer loses his job, expecting your ex to maintain the maintenance is like Canute and the waves. The nearest the writer ever got to losing his temper was with a poster whose ex had been made redundant and she was saying: that’s his problem, he can sell everything except the shirt on his back, raise a loan, pay back the arrears when he gets a job, you name it. The person concerned has not been posting on Wiki for many years, no doubt because she got very short shrift, so if you’re reading this, it’s not about you!
And finally, ALWAYS NEGOTIATE IF YOU CAN. With a mediator, if you like. Using collaborative law if you prefer that.
Unfortunately, because divorce generates friction, and friction generates heat, this advice sometimes goes unheeded. But I have purposely kept the best advice to the end.