With it being widely now reported that the average energy bill for households will rise by an average of £693 a year following a 54% increase on the current price cap in force and interest rate rises impacting on future mortgage payments, many people will be looking at how best they can maximise their income and those separating or who have separated might be then thinking long and hard about whether their spouse can or should be asked to pay spousal maintenance if they are not already.
If you are already in receipt of spousal maintenance you may be wondering whether the recent increase in living costs is something that might allow for any pre-existing award for spousal maintenance to be re-looked at.
What is Spousal Maintenance?
In short, spousal maintenance is a payment that’s paid by a wife or husband to their former spouse as part of their divorce, it is more often than not agreed to be paid every month and it can last for either a defined period or, in increasingly rare cases, for the rest of your former spouses’ life. The latter is known as a “joint lives order.”
Spousal maintenance is not the same as child maintenance – many will already be well aware that child maintenance is statutory in nature and a legal requirement already separately then existing that requires an amount to be paid by a non-residence parent to the primary carer of children to pay maintenance for the sole benefit of the child. The amount to be paid is determined by the Child Maintenance Act and there is an online calculator that often is gone to in order to work out what is fair to pay.
Child maintenance then is designed then to be paid to help toward a child’s living costs and so is paid when one parent (the non-resident parent) is no longer living with them; both parents are responsible for the costs of raising their children, even if they do not see them and child maintenance can be either agreed upon by means of a private arrangement or through the Child Maintenance Service – a government scheme.
Why should I pay Spousal Maintenance when we are no longer together?
A question often asked, but in short, when you marry you and your partner are also committing to each other financially as well as emotionally. The law on divorce is based on your future needs and it is generally accepted that where one spouse has a much higher income than the other, there may need to be a period of ongoing financial support in order to avoid undue hardship or to avoid the impact in the change in finances impacting upon the well-being of any children.
How is Spousal Maintenance calculated?
Unlike the calculator for child maintenance that might be gone to, there is no set formula that can be used to calculate what spousal maintenance should be.
When determining whether at all any spousal maintenance should be at all payable, or how much should be paid and or then the length of time for which it should be paid, on an application, the Court has to have regard to the overall circumstances of the parties and in determining the level of maintenance, the Court will take into account the parties’ day to day financial commitments, including any child maintenance obligation, and how these can be met from the available resources.
For obvious reasons, deciding on then what is fair and reasonable and what the amount of any spousal maintenance should be can be difficult and varies significantly from case to case.
How long does the requirement to pay Spousal Maintenance last?
When dealing with financial matters arising on divorce, the Family Court has a duty to dismiss the financial obligations between the parties as soon as possible in order to try and then achieve a financial “clean break”, so in some cases, the Court may order spousal maintenance if at all appropriate to be paid for only a relatively short period (example two to five years) or if a person has been out of work for many years for example in the case of say a wife raising children, the Court may make an Order on a lifelong basis – this is known as “joint lives” maintenance.
Can Spousal Maintenance be changed?
Yes, spousal maintenance can be changed; it can go up, down, or in certain cases be stopped altogether and the change can be made by agreement between the parties or the Court can be asked to vary the terms of spousal maintenance payments.
A variation in spousal maintenance can often be required because of a change in your personal or financial circumstances or those of your former partner; often for example the payer or receiver loses their job and they cannot get readily another one or the person receiving spousal maintenance re-marries (this automatically stops the spousal maintenance payments) and in certain instances, the person receiving spousal maintenance may start to cohabit with another thus triggering a change.
In the present instance, larger bills such as an increase in mortgage payments due to interest rate rises or then a significant increase in fuel costs might be a good reason to look at a change in the arrangements; whilst a decision say to go out and lease an expensive car might not be at all thought reasonable such as to then warrant an increase in spousal maintenance, larger bills due to issues and matters out of your control might justify a change in payments however bigger bills doesn’t necessarily mean that payments of spousal maintenance will go up; the person paying is also likely to have to also think about higher bills and outgoings for energy and for mortgage/rent and unless they have spare or surplus income say arising from a pay increase, then their financial circumstances when considered might in fact mean that they are unable to afford to pay what they were previously asked to, as such payments could be varied downwards as well as up or stopped altogether.
Every spousal maintenance question then must be considered very carefully as any change very much depends on the financial and personal circumstances of the parties involved.
If we agree on a change in spousal maintenance how can that be properly recorded?
You can agree a change in spousal maintenance payments in a number of different ways:
- By agreement between you;
- By using a solicitor to help with negotiations;
- By using a family mediator to help you reach an agreement or
- By lastly making an application to Court to vary spousal maintenance.
Going to Court should always be considered as the last resort and as a firm of Resolution practitioners, we would always encourage families and individuals to resolve their issues in a constructive, non-confrontational way in the hope of producing a better outcome for all concerned. To that end, the ideal would be that if you can reach an agreement without Court intervention, that should be aimed for, and any agreement reached amicably outside of any Court process should be put in writing and to secure a financial court order or apply to the court, by agreement, to change the wording then of any existing spousal maintenance order.
What if we cannot agree, can I apply to the Court?
You can apply to the Family Court to increase, decrease, or stop the requirement to pay spousal maintenance payments but before doing so it is highly recommended that you speak to a solicitor before making any application so that you can be given appropriate and tailored advice on your likely prospects of success or whether it is best to try and negotiate without first making an application to Court; the Court very much now expects parties to try and resolve issues outside of Court if at all possible and you are encouraged to try and attempt for example mediation first but ultimately if having tried all other means no agreement has been reached, then the Court remains open to be applied to for help to resolve any dispute.
An application to the Family Court to vary spousal maintenance follows a similar court procedure to an application for a financial settlement in that the variation application will involve a requirement on the parties to provide updating financial disclosure and on issue the Court will list the application for a hearing with a view to then making directions to try and help you either reach an agreement or to then later allow the Court to determine the application at a later final hearing when the question as to whether spousal maintenance payments should be varied at all would be determined.
For expert advice on the subject of spousal maintenance and financial matters arising from separation more generally please contact Andrew Wraith, Solicitor, at Prism Family Law for more information on 0191 269 6871 or email [email protected] for help.
This article is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.