Blog by Margaret Simpson, partner
In considering an appropriate financial outcome for separating or divorcing parties one of the most challenging issues can be that of maintenance payments. If the issue of child maintenance cannot be agreed it will be determined by the Child Maintenance Service (formerly called the Child Support Agency) according to the statutory formula.
Not so with spousal maintenance payments. Although payments may be made by the wife to the husband, in the majority of cases it is the husband who is being asked to make payments to the wife. This may be where she has either given up work to take on the responsibility of bringing up the children and running the home or has returned only to part time work as the children get older.
Just fewer than 50% of all divorces feature children under the age of 16 years. Most women have less economic and earning capacity to deal alone with the financial consequences of divorce – often due to decisions they have made during the marriage.
Accordingly, on divorce, it is often the wife who is financially dependent on the working husband and who needs to pursue a claim for income.
The level of income (maintenance) is not determined by a formula but by considering a whole range of factors including her reasonable needs, her own resources, her actual income, her ability to increase that income (and if so when), the income resources of the husband and his own income needs.
Much time is spent in considering these factors and ensuring that the wife has a properly and fully considered budget setting out her income needs now and in to the future.
If maintenance is to be paid it can be for a limited period of time to allow the wife to adjust to independence without undue hardship, or on an open-ended basis until the death of the husband or the wife, or until the wife’s remarriage.
The amount of maintenance can be varied upwards or downwards to reflect a change of circumstances and can be capitalised in the future upon payment of a lump sum or a Pension Sharing Order.
There is increasing debate about the creation of dependency by the payment of open-ended spousal maintenance and the nature of financial obligations created by marriage and their continuation following divorce is causing some commentators to push for a reform of the current law.
Presently however, spousal maintenance has a proper place in many cases in seeking to achieve a fair outcome.
Where there has been economic disparity due to the decisions made by the couple during their marriage and if there are insufficient capital resources to correct this imbalance, ongoing spousal maintenance will, on occasions, be an appropriate mechanism to ensure that the income needs of the financially weaker party are met.
This blog first appeared in the Yorkshire Post’s Country Week supplement .
Margaret has significant expertise in farming and landowning cases, you can contact her on 01748 900 888.
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