When reaching a financial settlement, one spouse will often agree, or be ordered by the court, to provide their ex-partner with a sum of money each month to provide them with income. This is separate to any capital divisions that will occur and will continue on after the couple have obtained Decree Absolute either for a fixed period or, in the case of some spousal maintenance orders, indefinitely. This article will explain the difference between spousal maintenance and child maintenance.
This type of maintenance can be agreed between spouses or ordered by the court if there are financial proceedings and 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 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. Even if the order is for joint lives, if the spouse who receives the spousal maintenance payments remarries, the order will 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. 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 it may reduce the spousal maintenance they are entitled to. 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.
If a spousal maintenance order is in place, there is not a clean break. 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 orders will only be made if the parties have children under the age of 18. 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 do not 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, or if the non-resident parent is abroad. In the vast majority of cases, the Child Maintenance Service (CMS) are responsible for making and enforcing child maintenance orders, not the 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 child maintenance agreed should be included in the consent order (the financial document drafted by the parties and then approved by the court). 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. As with spousal maintenance, the success of this type of application will be largely dependent on the income of the spouse who is making the maintenance payment.
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 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, there can be a clean break.
The family team at Stephens Scown LLP in Exeter, which has been given the top ranking by independent legal guides Chambers UK and Legal 500. Liz features on the Citywealth Leaders List, an international guide to the most highly regarded figures in private wealth management. To contact Lucy or a member of the family, please call 01392 210700, email firstname.lastname@example.org