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When reaching a financial settlement, one spouse may agree, or be ordered by the court, to provide their ex-partner with a sum of money each month to meet their income needs. This is separate to any capital divisions that will occur and will continue on after the couple have obtained Final Order in the divorce. This can either be for a fixed period of time or, in the case of some spousal maintenance orders, on a joint lives basis. This article will explain the difference between spousal maintenance and child maintenance.

Spousal maintenance

This type of maintenance can be agreed between spouses or ordered by the court if there are financial remedy proceedings. Spousal maintenance is based on need, not entitlement. When making a spousal maintenance order, a court will consider both the income needs of the spouse in whose favour the order is made and the disposable income of the spouse who will be required to make the payments.

Spousal maintenance orders can either be for a fixed period of time or can be for joint lives, meaning that spousal maintenance may continue until the death of either of the spouses. That said, if the spouse who receives the spousal maintenance payments remarries, the order will automatically come to an end.

Any time after the spousal maintenance order has been made, even many years later, either party can apply to the court to have the amount of the order varied, or capitalised. This will be especially relevant if the income of the spouse making the spousal maintenance payments either increases or decreases as this may have an impact on the amount that they are able to pay. Other circumstances could also have an influence on spousal maintenance, for example if the spouse receiving the benefit of the spousal maintenance began to cohabit with a new partner, which may also reduce the spousal maintenance they are entitled to depending on the terms of the original order for spousal maintenance, or subsequent proceedings. There is no automatic variation of spousal maintenance so if circumstances were to change after the order was made, it would be down to the individuals involved themselves to bring a claim for variation.

If a spousal maintenance order is in place, there is not a complete income clean break between the parties. Therefore, all financial ties have not been severed and it would be possible for some further financial claims to be bought in the future.

Child maintenance

Child maintenance is a statutory right and there is an automatic entitlement to child maintenance (depending on how the care for the children is shared).

Child maintenance payments are made by the non-resident parent to their ex-spouse for the benefit of the children of the family. Unlike spousal maintenance, the court does not usually have the jurisdiction to order child maintenance of its own volition apart from in a limited number of circumstances such as; if the child is disabled, if the child maintenance is necessary to meet school fees; if the non-resident parent is abroad; or if the maximum amount of child maintenance has already been awarded by the Child Maintenane Service (CMS). In the vast majority of cases however, the CMS are responsible for making and enforcing child maintenance orders, not the family court.

Child maintenance can be calculated using the CMS formula but it is possible for payments to be made over and above the CMS rate if the parties voluntarily agree to this. The agreed child maintenance payment can be included in the consent order (the financial document drafted by the parties and then approved by the court). If so, the child maintenance will stay at the agreed rate for a year, after which the court order can be varied by an application by either party to the CMS.

If there is more than one child of the family, child maintenance is apportioned per child. Child maintenance is usually a fixed amount which will be paid for a fixed period of time, often until either the child turns 19 or finishes secondary education, whichever is later. However, the parties can agree to child maintenance lasting for a longer period, for example until the child has finished tertiary education. The family court has the full power to deal with higher education as a separate issue to child maintenance.

If there is a child maintenance order in place and no spousal maintenance, this will still be a clean break.

If you have any questions in relation to spousal maintenance, or child maintenance, then do contact our Family Law team and we would be happy to assist.