There are various financial claims that can be brought by the parties under the umbrella of divorce proceedings, one of which is spousal maintenance. Where there is an ongoing entitlement to maintenance post divorce, the question arises should this be a joint lives order (i.e. until one of them dies) or should there be a cut-off point in the future? If so why and when?
Effect of re-marriage and cohabitation upon spousal maintenance order
A spousal maintenance order will automatically end if the recipient re-marries. So, if the spouse has a generous maintenance order, they need to think carefully about re-marrying. Once the maintenance order has come to an end upon re-marriage it cannot be resurrected even if, on a pessimistic note, the second marriage ends in divorce.
Cohabitation does not automatically revoke a maintenance order. If an ex-partner does cohabit then the other party can ask the court to look at varying the maintenance order or discharging it completely. In cases of cohabitation, what the court will look at is what the new partner is contributing to the household budget as clearly if there is a reasonable contribution this will reduce the maintenance needs and the knock on effect will be less need will need less from the former spouse. It is important to note that if child maintenance is being paid, cohabitation will not terminate that liability to pay child support and generally is not varied as the new partner has no legal obligation to support the children that are not theirs.
The Court must consider whether a clean break can be achieved
The court in financial cases has to consider whether a clean break between the parties can be achieved. ‘It shall be the duty of the court to consider whether it would be appropriate so as to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of decree as the court considers just and reasonable’.
When acting for the party paying maintenance, the initial reaction is to want a clean break order. They generally do not want to be tied to a maintenance order, be it a term order or for life. Where there are still minor children it is quite usual for claims for maintenance to remain open even if only for a nominal amount, i.e. £1 a year until the children have reached the age of 18 or finished their full time education whichever is the later event. This acts as a safety net for the main carer should there be any issues with the payment of child support.
When should there be a clean break?
If the assets of the marriage are of such value that the spouse’s claims for maintenance can be capitalised, i.e. the maintenance entitlement is rolled up into a one off capital payment. Capitalisation is often considered an option where the payer is reaching retirement age and there is a joint lives order in place. One party may if he there is sufficient capital look to buy the other party out of their future claim on income, in particular pension income.
What is a reasonable level of maintenance?
In the majority of cases the income has to stretch to cover the two household budgets where once it covered one and the inevitable slashing of the income needs schedule can be a quite brutal exercise and a bit of a reality check.
There is no fixed formula for the level of maintenance that is awarded. It becomes a discretionary exercise for the Judge. The needs of the parties in the majority of cases dictate what the level of maintenance will be. The court will endeavour to achieve that each party and their children have enough to meet their reasonable needs. In the big money cases the court has more flexibility to generously assess those needs where appropriate.