Often, spouses are concerned that if their husband or wife has an income lesser than their own, they will automatically have an obligation to pay spousal maintenance when they divorce. This is not always the case.
The Courts will take numerous factors in to consideration when determining if, and the sum in which any spousal maintenance is payable. Primarily, they will consider the needs of the applicant, and their ability to meet those needs. They will also take into consideration the ability of the respondent to pay maintenance.
Where there are children in the family, child maintenance will be paid separately to spousal maintenance, and any child maintenance paid and received will be taken into account when calculating maintenance for a spouse.
The matrimonial Courts are increasingly favouring a clean break on divorce where possible; the object of a clean break is to settle the spouses’ financial responsibility to each other, often by way of a lump sum payment in place of ongoing spousal maintenance.
However, a clean break is not always possible; for example where the paying spouse does not have the capital available to pay a lump sum or where wealth is tied up in land, and so an order for spousal maintenance may be made or agreed between the parties.
In higher income families, the focus of the Courts will be less on meeting an applicant’s basic needs and more on ensuring that a good standard of living can be achieved for the dependant spouse. The dependant spouse should carefully prepare a budget with reference to the standard of living they enjoyed in the marriage. Clearly this level of maintenance can only be ordered if there is sufficient income so as always, this will be a balancing act between need and ability to pay.
It is important to seek legal advice when considering financial provision on divorce and in preparing an appropriate budget.