Maintenance Payments – How long and how much?

When a marriage comes to an end one of the questions that will have to be answered is whether one of the parties will have to pay maintenance to the other and if so, for how long.

How long – part 1

The law

The law in England and Wales (E & W) does not limit the payment of maintenance to a maximum period. The length of the maintenance will depend on all the circumstances of the case.

In some countries, for example in Scotland and many European countries, the length of time maintenance has to be paid is fixed by the general law and judges only have very limited discretion to change that period.

In Scotland, when maintenance has to be paid, then that is for no more than three years. The period can only be extended only if there are good reasons to do so. Such reasons might be, for example, serious and long term ill-health or disability of the receiving party or of a child, preventing that other party from working and becoming self-supporting.

Applying the law in E & W

There are four separate (although related) aspects to the issue of the payment of maintenance when this is considered in E & W.

1.  If there are children and one party is in a stronger financial position than the other, then that wealthier party will almost always have to pay towards the costs of looking after the children. In the absence of agreement over the amount of maintenance to be paid, this will be decided by the Child Maintenance Service. The exception to this would be if the children were living with the wealthier party.
2. Whether one party should pay towards the support of the other party
3. If the answer to question 2) is “yes”, the amount of maintenance will be decided and for how long.

Should one party pay towards the support of the other?

In deciding this question, the overall financial position will be considered. An examination will take place as to how those finances should be divided and whether, after such division, each party could afford to live reasonably, judged against the financial position of the other party. If not, the overwhelming likelihood is that maintenance will have to be paid by the financially stronger party to the other.

How much

The starting point is always that a “fair” result must be achieved. The courts in E & W regard “fairness” as including an equal sharing between the parties of the available finance, both capital (savings, property, pensions etc.) and income.

There are, of course, some situations in which an equal sharing would not be “fair”. For that reason, for example, assets brought into the marriage and always treated separately by the parties during the marriage, are often ignored or shared in a different proportion. The same is true of the value of assets, such as a business, which have been acquired exclusively because of the very special and exclusive contribution of the owning party (although this is an extremely rare state of affairs).

Where there is an unusually large amount of money and particularly income, the level of maintenance will be judged by the standards of living during the marriage and what should be expected after the separation, based on those standards.

How long – part 2

1.  The law in E & W requires the court to examine the overall situation and see whether there is any way in which the parties can be placed in a situation where they are financially independent of each other. For example, if the court decided that maintenance should be paid but there was sufficient capital available, it could order the party who is to pay maintenance, to make a lump sum payment instead of the maintenance. This would provide what the lawyers call a “clean break”.
2.  If there is insufficient money available to achieve a clean break by making a lump sum payment or if the future is not clear enough (e.g. in the case of serious illness where one party has a limited life expectancy), maintenance would be ordered.
3.  In some cases, maintenance is ordered to be paid is to cover a specific period. Such orders are called term orders” and might, for example, be:
   a) until the receiving party has had time to retrain and find employment or
   b) when the youngest child has left school or entered secondary education.
4.  In some cases, maintenance is ordered to be paid until the death of one of the parties. This is usually applicable in the cases of more elderly parties, where it is unlikely that the party who is financially the weaker would be able to return to work because of age or illness.
5.  In the situation in 4) above, either party would have the right to return to court to seek a change of the amount involved (or that the payments should cease) because of a significant change in their financial position.

Summary

It has been a deliberate policy of the law in E & W over many years that the law gives to the judges a very considerable discretion how to shape a solution in a particular case to take account of all the relevant factors. This means that a suitable solution can be found rather than one arrived at by applying a predetermined formula.

There are those who argue, particularly so in the present age where equality between the sexes is such a priority, that there should be a much greater emphasis on each party being required to be self sufficient within a specific period e.g. three years, as in Scotland.

It is unlikely that those differing approaches will be resolved in the short term. For the time being, the law as it now is in E & W will continue to be applied.

Our advice is that early sound advice should always be taken so that everyone has an understanding of the likely way in which the law will be applied in a particular case

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by e-mail or telephone.