What is Spousal Maintenance?
Upon divorce, the Courts can award a spousal maintenance to be paid by the spouse with a greater income threshold to the spouse with a lower income threshold. The Courts award spousal maintenance only if one party does not have the financial capacity to support themselves.
Spousal maintenance is usually paid on a monthly basis however, the Court has the discretion to decide as they find fit. In some cases, the Courts can order that a lump sum to be paid to the recipient.
Spousal maintenance is usually a challenging matter in divorce and dissolution, however it does not halt a party from receiving their rights should the Court believe they are entitled to. It must be noted that the parties do not receive an automatic entitlement of spousal maintenance and must make an application to the Court.

What is the length of Spousal Maintenance?
Spousal maintenance can be awarded for a specified term or in rare occasions it can be awarded indefinitely. When maintenance is awarded for a specified period, the court have the powers to order that the payments are to continue until the youngest child reaches the age of 18. However, when maintenance is ordered indefinitely it can last until one party deceases or either party enters into a new marriage.

Spousal maintenance is also known as Periodical Payments. In accordance with S28 (1) (a) the Periodical Payments cannot extend further than the death of one party or the remarriage of the recipient.

Types of Spousal Maintenance
There are 4 different types of spousal maintenance:
(a) Joint lives order
(b) Term maintenance order
(c) Clean break order
(d) Capitalised clean break order

(a) Joint lives
This type of maintenance is payable until one parties death or the remarriage of either party.
Joint lives maintenance order is usually decided upon the financial circumstances of either party. Typically the Court grants this order where:
1. The couple have been in a long term marriage and there is inconsistency between the income or the earning capacity of the husband and wife.
2. Where there are children of the marriage.
By virtue of S25A (2) the court may only place a term on the Periodical Payments Order if they believe that the recipient is able to adjust. However, in some case it is impossible to assess whether the recipient will be able to achieve the independency as evidenced in the case of C v C (financial relief: short marriage) [1997] 2 FLR 26.
A joint lives maintenance order in most circumstances is deemed as an appropriate order that the court will consider when making a decision.

(b) Term maintenance order
Term maintenance order is split into two categories as follows:
1. Extendable term – this type of maintenance is over a fixed period, however the Court has the discretion to extend the term should it be necessary to do so.
2. Non-extendable tern – this type of maintenance is the opposite to extendable term. A non-extendable term cannot be extended after the fixed term under S31 MCA 1973
However, a non-extendable term is subject to a bar by virtue of S28 (1A) bar, which is an order where the wife is not permitted to apply for an extension to the spousal maintenance. Where this rule cannot apply the court will need a justification as to why the term should be extended as evidences in the case of Fleming v Fleming [2003] EWCA Civ 1841. The Court will need to take into consideration whether the S28 (1A) bar should be imposed on the receiving party, given the fact that periodical payments are known to be complex. This must be decided before the final order is made.

(c) Clean break order
A clean break order is when the respective parties walk away from the marriage without making any future financial claims against one another of the others income and assets. It therefore allows the parties to walk away from the marriage free.
Many couple try to obtain a clean break order, to ensure that the marriage is over and there is no communication remaining between the couple. This entails the parties to move on with their lives.

(d) Capitalised clean break
This type of maintenance is more sufficient when a couple have a large capital and one spouse is then able to pay a lump sum to their former partner. When determining whether a lump sum is appropriate, this is usually calculated in connection with joint lives maintenance and calculated in reference to the Duxbury tables as per the case of Duxbury v Duxbury [19871] 1 FLR 7
Why do I have to pay spouse maintenance
Spousal maintenance is paid to the financially weaker party by the stronger party. Usually parties do try and obtain a clean break following their divorce, however, some couples may choose to take this route instead.
Despite the complexity in spouse maintenance, the purpose is to support the other party who may have given up a lot in their lives such as their career to care for the children etc. Following a divorce, the financially weaker party may not be able to obtain employment due to their current circumstances.

Factors taken into consideration by the Court
When determining the amount of spousal maintenance that one party has to pay the court consider the following factors:
(a) The income needs of the parties and their earning capacity
(b) Whether there are children of the marriage and who are they residing with
(c) The employment status of the parties
(d) The total income during the course of the marriage
(e) The length of the marriage
(f) The parties ages
(g) Assets obtained during the course of the marriage

How is Spousal Maintenance calculated?
There is no set formula in calculating spousal maintenance. Calculating spousal maintenance is heavily dependent upon the financial income of one party.
The Court will assess the financial needs of each party, along with their income needs, and then decided the amount that has to be paid to the other as well as the length of time. Every marriage is different and so are each couples circumstances, therefore there is no fixed amount or way calculating how much is payable.
To calculate the amount of spousal maintenance to be paid, couples will be required to disclose their financial position. Upon disclosure, the court will then look at the need of each party rather than what they want. However, there is room for discretion to decide otherwise as the law on spousal maintenance is not fixed.

How can you avoid paying Spousal Maintenance?
It is possible for spousal maintenance to be avoided only if both parties are agreeable to a clean break order, along with are fully able to support themselves financially following their divorce.
A clean break order is whereby couples walk away from the marriage free from any restrictions. Neither party will be entitled to make any future financial claims against the other.

Implications of Spouse Maintenance
There are 4 different types of implications when deciding whether a spousal maintenance is the best route to take.
(a) Stockpiling Orders
(b) Duxbury capitalisation
(c) Cohabitation of payee
(d) Bonuses

(a) Stockpiling Orders
The first implication that may arise from spousal maintenance is that the recipient is allowed to save up the money rather than spending it all. The giving party is usually in the view that their former spouse would not have any money left at the end of the month, however this is not always the case. When the courts make a decision, they draw their attention to the need of the recipient more than anything else. This means that when the court calculate how much one party has to pay they look at the other’s financial circumstances as mentioned above.
In the case of Fields v Fields [2015] EWHC 1670, the court concluded that stockpiling is well recognised for attaining equality between the parties. This is justified as it means that the Courts will achieve what they had intended, such as the dependency of the other party.

(b) Duxbury capitalisation
This usually applies when a couple have a lot of savings/assets worth a substantial amount. The courts usually look at the payee’s income needs and then calculates the capital sum required to pay for a similar standard of life.

(c) Cohabitation of payee
This implication only arises when a couple are not married, but are cohabitating. The courts will take into consideration the duration of the relationship along with several other factors which includes; whether the couple are to cohabitate in the future. If a couple are cohabitating, the couple can still apply for spouse maintenance, however, the court will reduce the payee’s needs.

(d) Bonuses
Problems arise as to whether bonuses should be a part of the income, especially when bonuses can be irregular. In some case law, Courts have discovered that bonuses can make up a substantial part of the family home. However, this can be debatable.
Bonuses are usually received in addition to income and usually received based on a individuals performance at work.

Spousal maintenance and cohabitation
Should one partner decide to enter into cohabitation, it does not stop the payments of spousal maintenance. The only time spouse maintenance can be stopped is upon ones death or remarriage. Cohabitation is not classified as marriage and therefore the paying party will have to continue paying.
Another reason why spousal maintenance is continued to be paid during cohabitation is due to the fact that they do not have the similar financial claims against one another even should the relationship end.

Spousal Maintenance and children
Spouse maintenance is paid in addition to child maintenance, and therefore the two should not be complicated. Spousal maintenance does not affect child maintenance and could in fact be payable at the same time. Spousal maintenance is often confused with child maintenance, however, spousal maintenance is dependant upon the parties financial needs, whereas child maintenance is decided upon the Child Maintenance Act 1991. It should be noted that spousal maintenance does not affect child maintenance.

Spousal Maintenance and benefits

When calculating benefits such as Universal Credit, the Department Work Pension do not take into consideration any spousal maintenance or child maintenance that the recipient is receiving. When applying for any types of benefits, spousal maintenance or child maintenance does not have to be declared.