A Complete Guide to Spousal Maintenance

What is spousal maintenance?

Spousal maintenance, technically a form of periodical payments, is income paid by one former spouse or civil partner to the other. The court’s power to order it comes from section 23 of the Matrimonial Causes Act 1973 (and the equivalent provisions for civil partners). It exists to bridge the gap where, after a marriage ends, one person cannot meet their reasonable income needs from their own resources. It can last for a short period of time (e.g. a few months or years) or until the end of a former spouse or civil partner’s lifetime, unless they remarry.

It is important to separate two things that are often confused. Spousal maintenance is support for a former spouse/partner. Child maintenance is financial support for the children and is dealt with separately, usually through the Child Maintenance Service. A person can be entitled to one, both or neither.

Who is entitled to spousal maintenance?

There is no automatic right to spousal maintenance. It is available only to people who are or were married or in a civil partnership. Crucially, cohabiting couples cannot claim it, however long they have lived together, which is one of the most common and costly misunderstandings we see.

Where a couple was married, the court decides whether maintenance is appropriate by weighing the factors in section 25 of the Matrimonial Causes Act 1973. The welfare of any child under 18 comes first. The court then considers each party’s income and earning capacity, their needs and responsibilities, the standard of living during the marriage, the length of the marriage and the ages of the parties, and the contributions each has made. In practice, the central question is whether one party has a genuine income need that they cannot meet, and whether the other has the ability to pay. If either you or your former partner is considering a divorce, these are the questions to think about early.

How is spousal maintenance calculated?

There is no calculator and no set percentage. Anyone offering a simple formula is misleading you. Instead, the court assesses the recipient’s reasonable needs, usually built up from a detailed monthly budget, and measures those needs against the paying party’s income and their own reasonable outgoings.

The leading guidance comes from the case of SS v NS [2014] EWHC 4183 (Fam), in which Mr Justice Mostyn drew together the principles the court applies. Maintenance is awarded to meet needs, save in a wholly exceptional case. The marital standard of living is a relevant reference point but not a guarantee, and its weight fades the longer the parties have been apart. Where the payer’s income includes a bonus, the court may meet basic needs from salary and deal with additional or discretionary spending through a capped share of the bonus.

Victoria’s Experience: moving away from the ‘meal ticket for life’

There has been a shift in the court’s approach towards the provision of the “meal ticket for life” that joint lives maintenance has often been described as. This said, the court is still prepared to make a robust and realistic assessment of a party’s ability to generate an income and the receiving party’s ability to meet their own income needs over time. Recently a client saw the court order a term spousal maintenance award at a decreasing level, with the expectation being that the recipient of the award will return to paid employment despite being out of the workplace for 15 years.

How much spousal maintenance is paid?

The amount is whatever is needed to meet the shortfall between the recipient’s reasonable needs and their own income, so far as the payer can afford it. Two households cost more to run than one, so it is common for neither party to be able to maintain the marital standard of living, and the court will often have to apportion the available income fairly between them.

Where resources are limited, need drives the outcome. Where they are substantial, the analysis becomes more nuanced, and questions about earning capacity, investment income and the sharing of capital come into play. The Court of Appeal in Waggott v Waggott [2018] EWCA Civ 727 confirmed that a spouse’s future earning capacity is not itself a matrimonial asset to be shared, which reinforced the emphasis on need and on the recipient moving towards independence.

How long does spousal maintenance last?

Maintenance can be ordered for a fixed period (a ‘term order’) or, less commonly today, for the parties’ ‘joint lives’, meaning until one of them dies, the recipient remarries, or the court orders otherwise. Section 25A of the Act imposes a duty on the court to consider whether a clean break is possible, that is, ending the financial ties between the parties as soon as it can be done without undue hardship.

The modern approach favours a term that allows the recipient to adjust to independence, rather than indefinite support. Joint lives orders still exist, particularly after long marriages or where a party cannot realistically become self-sufficient, but they are far less common than they once were, as we explored in our article on the long tail of joint lives maintenance. Maintenance also ends automatically if the recipient remarries.

Victoria’s Experience: negotiating a clean break through capitalisation

Where resources permit, and in the right circumstances, the court will not shy away from a capitalised maintenance award. Clients are often faced with a balancing exercise: are there sufficient resources to capitalise a claim, possibly at a slightly lower level than an ongoing spousal maintenance award?  Or would it be better to pursue a higher ongoing spousal maintenance award? Given the statutory requirement the court has to achieve a clean break where possible, this is usually the starting point. A recent case involved capitalisation of a spousal maintenance award to achieve a clean break – this gave the client freedom and autonomy in a way that would not necessarily have been achieved with ongoing maintenance, particularly where it would have been at risk of variation if the paying party’s business interests failed and they may seek to vary the term or quantum of ongoing payments.

Can spousal maintenance be changed or stopped?

Yes. Because circumstances change, a spousal maintenance order is one of the few financial orders the court can vary later, under section 31 of the Act. Either party can apply to increase, reduce, extend, shorten or end the payments if there has been a material change, such as a significant shift in income, ill health, or the cost of living. We looked at this in our note on varying spousal maintenance up or down.

On a variation, the court can also ‘capitalise’ the maintenance, replacing future payments with a single lump sum so the parties achieve a clean break. Remarriage of the recipient ends maintenance automatically. Cohabitation does not end it automatically, but a new long-term relationship is often a strong ground for the paying party to apply to reduce or stop the payments.

Is spousal maintenance taxable?

For almost everyone, no. Since 2000, spousal maintenance payments are not taxable income in the hands of the person receiving them, and they are not tax-deductible for the person paying them. Maintenance is paid out of the payer’s taxed income. A very limited relief survives only where one of the parties was born before 6 April 1935, which now affects very few people. This is a point worth confirming for your own circumstances, as the tax treatment can influence whether ongoing payments or a capitalised lump sum is the better outcome.

Does spousal maintenance affect Universal Credit?

Yes, and this does catch people out. Spousal maintenance is treated as unearned income for Universal Credit, so it reduces the recipient’s award pound for pound: for every £1 of spousal maintenance received, £1 is taken off the Universal Credit payment. Child maintenance, by contrast, is ignored for Universal Credit.

The practical effect is that, for a lower-income recipient, spousal maintenance may not increase their overall income at all, because it simply displaces the benefit. That is an important part of the calculation when deciding whether to pursue maintenance, and it is worth taking advice before assuming that an order will leave you better off.

Victoria’s Experience: when maintenance is only part of the picture

For HNW and UHNW clients, maintenance is only part of the picture. A fair division of capital and other assets may mean that a party’s ability to meet their income needs is swept up by the deployment of those assets after a final financial order, whether by drawing down on capital, or living off the income generated by those assets.

How do you apply for spousal maintenance?

Most cases are resolved by agreement rather than a contested hearing. If you and your former partner can agree the level and length of maintenance, that agreement is recorded in a consent order and approved by the court, so it is binding and enforceable.

If you cannot agree, either party can apply to the court for a financial order as part of the divorce, and the court will decide. Where money is needed urgently before the case is resolved, the court can order interim maintenance, known as maintenance pending suit, under section 22 of the Act. A financial order cannot be made final until the conditional order in the divorce has been granted. Because the stakes and the sums involved are often significant, it is sensible to take specialist advice before making or responding to a claim.

Getting advice on spousal maintenance

Spousal maintenance is rarely straightforward. The right outcome depends on a careful assessment of needs, resources and the realistic path to independence, and small differences in how a case is presented can make a large difference to the result. At Payne Hicks Beach, our Family team advises spouses and civil partners across the full range of maintenance issues, from first claims and clean-break negotiations to variation, capitalisation and enforcement, including in substantial and international cases.