Do I have to pay spousal maintenance after divorce?

Spousal maintenance is an order requiring a husband or a wife to pay maintenance to their former spouse following a divorce. It is usually paid on a weekly or monthly basis and is entirely separate from child maintenance.

There is no automatic right to spousal maintenance. A judge must have regard to all the circumstances of the case and so each case turns on its facts. That said, spousal maintenance is usually payable where one party’s income is insufficient to meet their day-to-day needs.

How much may I have to pay?

There is no fixed or uniform formula to calculate spousal maintenance. It is designed to give the recipient time to adjust and transition to independence and is driven by what they need to do this. The court will also consider the principles of compensation and sharing in exceptional circumstances.

In making a calculation, the court will have regard to the parties’ current earning capacity, future earning capacity and potential earning capacity. The recipient will set out what income they receive and what their anticipated future outgoings are. An assessment will then be made as to whether the recipient has a monthly surplus or deficit and if the latter, what that deficit is and how much maintenance is needed to relieve them from it. The payer will also need to set out their income and anticipated future outgoings so that an assessment can be made as to what they can afford to pay to the recipient.

How long will I have to pay it for?

There is no hard and fast rule. Spousal maintenance may be made for such term as the court thinks fit:

• it can be made for an extendable or non-extendable fixed term, meaning that it ends on a specified date or upon a specified triggering event occurring, such as upon the youngest child finishing full-time education;
• it can be made on a joint lives basis, where the payer pays the recipient until one of the parties dies or the recipient remarries. Joint lives orders, so-called ‘meal tickets for life’ are, however, becoming increasingly less common;
• it can be made for a nominal amount, requiring the payer to pay the recipient, for example, 1p per year. A nominal amount is ordered where the recipient can meet their needs but may not be able to do so in the future, in which case the recipient can apply back to the court for a substantive amount.

When considering how long a spousal maintenance order should last, the court will have particular regard to the recipient’s age, qualifications and role in the marriage. Consideration will also be given to whether they are the primary carer of children, the length of time they have been out of the workplace, their recent work experience, and the availability of suitable jobs. It should be noted that the court will expect both parties to maximise their earning capacity.

Crucially, the court has a duty to consider a clean break at the earliest opportunity, which is where neither party has any continuing financial claim on the other. A clean break may be appropriate where there is a short marriage, the recipient is cohabiting with another partner, the recipient has a reasonable earning capacity or the prospect of one, or where the payer and recipient are both mutually poor.

A clean break may not be appropriate where there is a long marriage, the recipient has no earning capacity or a reduced earning capacity, the recipient does not have secure accommodation, the recipient is the primary carer of a child, or the recipient is unable to work due to ill-health.

If you have questions about spousal maintenance, please contact Grainne Fahy and Yasmin Khan-Gunns.