When a couple separates, whether one party is entitled to claim spousal maintenance from the other is a common concern. There are several factors that need to be considered, including:
- The length of marriage
- Whether each party is working
- The ages of the parties
- Who is looking after any children of the marriage
- Whether both parties manage financially without spousal maintenance
It’s important to understand that spousal maintenance is just that, financial support from one spouse to another paid on the breakdown of a marriage. It does not apply to unmarried couples and is different to child maintenance. It is also sometimes called ‘spousal support’.
The conditions under which spousal maintenance might be paid vary, as every marriage varies. One common scenario is where a couple has been together for a long time, and one party has given up work to run the home whilst the other has developed a career and been the family breadwinner.
There are arguments to say that the homemaker is entitled to financial support, in the form of spousal maintenance, if the marriage breaks down and on the basis that the spouse in need cannot support themselves financially from the income they have coming in from other sources.
Who is entitled to spousal maintenance?
To establish whether you are likely to be entitled to spousal maintenance, you should ask yourself the following questions:
- What are your financial needs and income potential? Can these needs be met without the support of your ex?
- Have you been married for a long time and given up work to support your spouse or family by becoming a home maker?
- Are you of an age where establishing a career that delivers the kind of lifestyle you have been used to would be difficult?
- Would you be financially better off having a financial clean break and lump sum from your ex, rather than ongoing maintenance which could be at risk if they lose their job or pre-decease you?
- Are you prepared to take your case to court if your ex will not agree to spousal maintenance?
- Are you planning to re-marry? (If you do, you will lose your right to spousal maintenance)
As is often the case with family law, every case is different. It is, therefore, important to take advice from a divorce and family lawyer on your entitlement to spousal support. They will be able to consider your circumstances and advise on the likely success of your case.
Do you have to pay spousal maintenance during separation?
You don’t have to support each other financially during a separation (although you are legally required to keep meeting the needs of any children).
Is spousal maintenance compulsory?
Spousal maintenance is calculated on a case-by-case basis. It is not an automatic entitlement and is not compulsory. Whether spousal maintenance is awarded will depend on the reasonable needs, current income and earning capacity of both parties.
It should be noted that, even if there is an imbalance between both party’s circumstances following a separation, spousal maintenance will not be awarded in every scenario. If an agreement cannot be reached during negotiations between both parties, the courts will weigh up several factors before they decide whether to award spousal maintenance.
What is a non-working spouse entitled to in a divorce?
There are several reasons why one spouse may not be working at the time of separation. Whatever the reason, there is no guarantee that someone who is not working will be financially supported via spousal maintenance.
One issue that can complicate whether spousal maintenance can be awarded to a non-working spouse is their earning capacity. Earning capacity refers to the estimated level of income someone could theoretically make rather than their actual income.
This means that if opportunities were available to a non-working spouse (e.g. part-time or freelance work), this would be taken into consideration and could prevent them from receiving spousal maintenance or reduce the amount they receive.
Is spousal maintenance the same as child maintenance?
No, it is important to stress that spousal maintenance is not the same as child maintenance, though the two are often confused.
Child maintenance, also referred to as child support, is financial support which is used to help fund a child’s daily living expenses. Payments are made by the parent who does not primarily live with the child to the one who does.
Unlike spousal maintenance, child maintenance is not arranged as part of a divorce. Child maintenance payments are handled by the Child Maintenance Service (CMS).
When is spousal maintenance refused?
Spousal maintenance would not be granted if a court felt the spouse applying for support did not need help with their reasonable costs or if the other spouse did not have the means to provide financial assistance to their ex-spouse.
What is the spousal maintenance one third rule?
The ‘one third rule’ is a now outdated approach to deciding spousal support in England and Wales. It worked on the principle that both partners’ incomes would be added together, with the lower earning spouse being awarded one third of the combined total, minus their own income.
Nowadays, spousal support in England and Wales is worked out according to the ex-spouses’ means and reasonable needs, as discussed above.
Talk to Woolley & Co, Solicitors about spousal maintenance
At Woolley & Co, Solicitors our expert divorce lawyers can ensure you get the best possible deal when it comes to spousal maintenance and the other aspects of dividing your finances. We tailor our approach to your situation and can help you reach an agreement with your spouse amicably or take a tougher stance where appropriate.
To take advantage of a free 30-minute consultation with an expert local family law solicitor, call 0800 321 3832 or complete our quick online form.
Sue Harwood
Divorce and family lawyer Cornwall
