What is spousal maintenace (alimony) in divorce?

Whilst not applicable to all cases, an important financial consideration following divorce is whether payment of spousal maintenance is necessary, and if so, the appropriate level and ‘term’ (i.e. length) of those payments. 

what is spousal maintenance?

Spousal maintenance refers to a financial arrangement where a person makes regular payments to their former spouse or civil partner. It is different to child maintenance, as its sole purpose is to meet the financial needs of the former spouse.

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How is spousal maintenance calculated?

There is no specific formula to determine the amount of spousal maintenance payable. The court will determine whether spousal maintenance should be awarded, and if so, the amount to be paid and for how long. This will be decided based on the specific facts and circumstances of each case. The court’s overarching aim is to achieve fairness, and consideration will be given to the listed factors under s.25 of the Matrimonial Causes Act 1973 and the court’s guiding principles. Particular focus will be on the parties’ needs, which may be generously valued, and their ability to pay.  

The courts are required to consider whether a ‘clean break’ can be achieved. As such, a lump sum will be preferable to spousal maintenance in many cases. However, many parties suffer a reduced earning capacity following a marriage, particularly those in longer marriages. Whilst the court encourages parties to reach financial independence, they do not wish to cause undue hardship to one party. For example, a party may take a career break to support the couple’s children, reducing their earning capacity compared to their spouse. In these circumstances, spousal maintenance will probably be ordered. By contrast, spousal maintenance may be less appropriate for short, childless marriages. 

Generally, the court now sees spousal maintenance as temporary support to help a party reach financial independence, rather than a ‘meal-ticket for life’.  As such, if the court makes an order for spousal maintenance, they will usually do so envisioning it to end once the payee can support themselves financially.  

Spousal maintenance will automatically end if the payee remarries or enters into a civil partnership, or if either party dies.

Will I have to pay spousal maintenance?

Spousal maintenance will usually only be appropriate where one party is unable to meet their needs from their own income and resources. Income needs are assessed with reference to the standard of living enjoyed by the parties during the marriage. In some cases, needs will be assessed generously to compensate the payee for their contribution to a marriage, often to the detriment of their own career and subsequent earning capacity.

Orders are more likely following long marriages, where the payee is the primary carer for dependent children, and where a payee has a limited or no earning capacity, or is unable to work due to ill-health.

How does the court decide whether to order spousal maintenance?

There is no automatic entitlement to spousal maintenance upon divorce. However, it will typically be paid where one party is significantly financially stronger, and the other requires some form of regular financial support after the divorce. In deciding whether to make an order for spousal maintenance, and if so, for how long, the court will consider the specific circumstances of the case and come to a decision based on various factors.

Duration of spousal maintenance

When considering orders for spousal maintenance, the court is obliged to consider how long those payments should subsist. The court has a wide discretion in this respect, and can make orders either for the ‘joint lives’ of the parties (i.e. until the death of either party), or for a limited term, usually expressed in years, linked to the length of time the payee requires to adjust, as soon as just and reasonable, to financial independence. Spousal maintenance payments will terminate automatically upon a payee’s remarriage.

Where a term of maintenance is required, in deciding the most appropriate duration, the court will consider whether, and when, the payee will be in a position to adjust to financial independence without undue hardship. This is case specific, and can be influenced by the ages of any minor children for whom the payee has primary care, the length of the marriage, and the time required for the payee to re-train and/or re-enter the job market.

Clean break

The court is also under a duty, on a case-by-case basis, to consider whether a ‘clean break’ is appropriate, i.e. the financial obligations of each party towards the other terminate as soon as just and reasonable after the grant of decree absolute, which dissolves the marriage. If a clean break is appropriate, there will either be no spousal maintenance, or spousal maintenance will be limited to a term. A clean break is more likely to be appropriate in cases involving a short marriage, where both parties have reasonable earning capacities (whether prospective or actual), and/or where the parties’ respective income needs can be met from capital.

Capitalising spousal maintenance

Whilst spousal maintenance payments are usually made monthly, in cases involving substantial capital assets, it may be possible to ‘capitalise’ a term of maintenance. In such cases, the court has the power to order a lump sum of additional capital, in satisfaction of a spousal maintenance order, to achieve a clean break.

Varying spousal maintenance payments

Spousal maintenance orders are unique in that they are capable of variation (upwards or downwards) if there has been a significant change in circumstances on the part of either party, and either party may apply.

Unless an order contains specific provision that a term is non-extendable (known as a ‘section 28(1A) bar), a payee may also apply for the extension of a term of maintenance if they have “exceptional justification” to do so.

why choose Vardags?

Vardags work exclusively with high and ultra-high net worth clients, tailoring our approach to achieve the most favourable outcome on a case-by-case basis. We have vast experience acting for payers and payees. Alongside our in-house forensic accounting team, we are able to assist with evaluation and assessment of income streams, and mount and defend arguments in relation to contributions and the analysis of income/budgetary needs.