Upon divorce or dissolution, the Court has the power to make orders for periodical payments and secure periodical payments. These are commonly called maintenance. Maintenance falls into two broad areas, child maintenance and spousal maintenance.
What is child maintenance?
Child maintenance is essentially providing funds to a party to assist with the child’s everyday living expenses.
Generally, child maintenance is the jurisdiction of the Child Maintenance Service who apply a mathematical formula based on gross earnings. A child maintenance calculator can be found at www.gov.uk/calculator-your-child-maintenance
If there is an agreement about child maintenance this can be recorded in a financial order that is approved by the Court. However, one year after the making of such an order either parent can apply for an assessment by the Child Maintenance Service under the present regulations and the court order will cease to apply.
Exceptions to Child Maintenance Service
Where a parent earns more than £156,000 per year the court has the power to make top up child maintenance orders.
Where a child has a disability, this may justify an order for financial needs over and above the CMS formula.
The court also has the power to make a party pay for private school fees.
What is spousal maintenance?
Spousal maintenance is maintenance that is paid by a party to their former spouse.
There is no mathematical formula for the calculation of spousal maintenance. The Court has a wide discretion to make an order that is fair. The Court’s aim is to achieve a transition towards independence rather than life long support. The Court considers all the factors set out at Section 25 of the Matrimonial Causes Act 1973.
Spousal maintenance, like a pension attachment, can be subject to future variation applications. The remarriage of the receiving party or the death of the paying party can terminate the order.
This is a total financial separation. When considering any financial application, the Court must first consider whether or not a “clean break” is achievable. If spousal maintenance is needed the Court will look to see if it can be “capitalised”, in other words an additional sum is paid in lieu of future spousal maintenance.
Length of maintenance
The obligation to pay child maintenance usually lasts until a child either reaches 18 or finishes secondary school, whichever is the later event. The Court has the power to order payment to cover tertiary education; often such payments are split between direct payments to the child in term time and a roofing allowance paid to the parent with care during holidays.
If an order for spousal maintenance is made, the length of the order will depend on several factors but in particular the Court will look to see whether the order should be a “joint lives” order or should only be for a “fixed term” with or without a “Section 28(1A) bar” preventing an application to extend the term. In some cases, a combination of age, length of marriage and duration of one party being out of the workplace may render the ambition of independence impossible.
At present there is a move towards time limited payments as there is an expectation that the liability to make periodical payments should come to an end. Where the Court makes a term order it may make it for a fixed term or an extendable term. Fixed terms may include a “step down” maintenance order to achieve a gentle transition from the marital standard of living to one that is more sustainable on a longer-term basis.
If you have any queries regarding both child and spousal maintenance, please contact our divorce lawyers in Guildford on 01483 451900.