Our Family law team clarifies the different types of maintenance arising from divorce and how long they last.
There are 2 types of maintenance or periodical payments arising from a divorce
1) Child maintenance
2) Spousal maintenance
Child maintenance following divorce
With child maintenance, this ends completely when a child reaches the latter of 19 years of age or ceases full time education (including university and further education)
Although many parents support their adult children beyond that time there is no legal obligation to do so. Single parents can therefore find themselves supporting and housing a family of adult children with no means of obtaining help from their ex-spouse – very difficult in situations in which a parent feels they have no option but to help or house their adult children.
Spousal divorce maintenance payments
In contrast, spousal maintenance can last for life if there is a “joint lives order”. This means that unless altered, the maintenance order continues whilst both spouses are alive unless the recipient of the maintenance order remarries ( see later in this article). Whilst a divorce court always has the power to vary/terminate a spousal maintenance order it is often wary of doing so completely. For example, an ex-spouse who receives spousal maintenance could succeed in getting a good job which means that they can be financially independent. If their spousal maintenance was terminated and they then lost their job and couldn’t work again, they would be left with no income having lost their maintenance order. For that reason judges will usually only reduce spousal maintenance to a nominal level which could be varied back upwards again, unless the maintenance order is “capitalised” by a lump sum payment to terminate maintenance altogether.
Capitalise an existing spousal maintenance
In the absence of remarriage of the recipient of a maintenance order which automatically terminates it, the fact that spousal maintenance can last for life is of great concern to the payer. The possibility of upward variation is always there. To avoid this, it is possible for either party or the court to capitalise an existing spousal maintenance order to permanently end the payments. This involves a specialist calculation, usually based on actuarial tables known as Duxbury, to work out what would be an appropriate sum bearing in mind life expectancy and investment returns to produce an appropriate income instead of maintenance.
Maintenance, both child and spousal and the capitalisation of maintenance is a complex area and specialist legal advice should always be sought.