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Maintenance on divorce. What you need to know.

20th November 2014

One key difference between being married and unmarried is that on separation you can potentially claim maintenance.

The principles relating to child maintenance follow a formulaic approach guided by the child maintenance service. While this has many shortcomings, it at least has the advantage of clarity.

Maintenance between spouses is less clear cut. It is regulated by the legal principles under the relevant legislation, guided by case law. There is a wide margin of discretion, meaning that maintenance claims can be unpredictable. However, two main factors tend to be paramount.

First, the concept of reasonable needs, generously interpreted, applies taking account of the standard of living during the marriage as a measure of reasonableness and the needs a person may have in the future. This can vary greatly and for example a person in their 50s who hasn’t worked for many years is in a very different position to someone who has a genuine earning capacity, who is expected to maximise this.

Second, the financial resources of the parties. Clearly, incomes are stretched post-separation as two houses have to be supported from the same asset base. However, this pressure does not automatically end a maintenance claim, it is a question of fact in each case. A careful assessment of income and outgoings must be undertaken to determine whether and if so to what extent maintenance can be paid.

There is a relationship between maintenance and the other areas of settlement, for example pension sharing orders and if the assets allow it, a capital lump sum can be paid in lieu of any future maintenance claim.

These claims can be made following separation provided a divorce petition has been issued and often a holding position is required in order to establish both parties immediately post-separation and can continue for substantial periods of time.

Maintenance is potentially a very difficult subject to resolve and requires careful consideration of the specific facts in each case. However, it is never good for one party simply to say ”I can’t pay so I won’t pay” without a careful review of the circumstances they are in and are likely to be in the foreseeable future.

A final point to bear in mind about maintenance is it can always be varied so if you have a maintenance order in your favour and you know the paying party has greater resources now then potentially your maintenance order can be increased to reflect this fact. So before giving up what could be a potentially valuable claim, you should seek legal advice.

Family Law
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