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Experts

The essential guide to spousal maintenance

Spousal maintenance can be an important feature when reaching a financial settlement.

In divorce and dissolution of civil partnership cases, it is one way a court can address a financial disparity between the parties. This typically arises when one party has insufficient income to meet their reasonable needs and the other party has the income and ability to help them meet those needs. Spousal maintenance is considered in the light of the surrounding circumstances and is not necessarily looked at in isolation.

Every case is different, and it is important to be properly advised concerning spousal maintenance so that you can make informed decisions.

Learn how financial settlements are calculated.

What is spousal maintenance?

It is essentially an arrangement in which one party pays a regular sum of money by way of income to their former partner to assist in their support. It is most relevant where the receiving party would not otherwise be able to meet their regular income needs and there is financial disparity between the parties.

Spousal maintenance can be agreed or ordered by the court.

A couple may negotiate and agree their own arrangements, and an application can be made to the court for spousal maintenance which is usually considered as part of the overall divorce settlement. However, spousal maintenance can be ordered in isolation without there being a divorce pending, in which case the arrangement would usually be reviewed if a divorce follows.

Spousal maintenance is intended to address the financial impact that can arise when a couple separate.

There are different terms which are collectively used when referring to spousal maintenance. There is maintenance pending suit, interim maintenance, and periodical payments. These are all types of spousal maintenance. The exact type of spousal maintenance you should seek depends on your circumstances and the point at which you have reached in the divorce process.

Who can apply to the court for spousal maintenance?

Currently, spousal maintenance orders can only be made in cases in which the couple are, or have been, married to each other or are civilly partnered. It does not apply where a couple have been cohabiting even if the relationship has lasted many years. There have been Law Commission proposals to address the position of unmarried couples but this guide deals with the law as it stands in January 2025.

Learn about the legal differences between marriage and cohabitation.

Who is entitled to spousal maintenance?

There is no absolute entitlement to spousal maintenance. It depends on the circumstances but, commonly, where one party has a higher income than the other who cannot meet their reasonable financial commitments, this could give good reason for a successful application for spousal maintenance.

In some circumstances, this may be as a result of the other party’s financial control. For more about this, see our article on narcissism, abuse and coercive control. Other forms of protection from domestic abuse may also be required.

How is spousal maintenance different to child support?

Payments for child support are intended to benefit the children and their needs. Spousal maintenance is intended to benefit the spouse in assisting them to meet their reasonable needs.

Child support can be agreed but, otherwise, the Child Maintenance Service can determine the amount and it is an arithmetic formula. There are some exceptions, which include school fees, child disabilities and a high-earner payer. For more information, see our article on how to calculate child support.

Spousal maintenance is not subject to an arithmetic formula and further details are given below.

How is spousal maintenance calculated?

This is not straightforward and there are several factors which influence the amount of spousal maintenance. Factors include the income and earning capacity of the parties, their ability to make payments and meet expenses, the standard of living which they enjoyed during the marriage, the length of the marriage, the contributions which they made during the marriage and other circumstances, which could include whether one party has not progressed their career or income earning ability so as to care for children and assist the other party to pursue their career. The weight attached to these factors varies from case to case and it is important to obtain expert advice concerning the individual circumstances of each case.

The leading case of SS v NS (Spousal Maintenance) 2014 EWHC 4183 (Fam) sets out the issues to be considered on an application for spousal maintenance. They include:

  • an award should only be made by reference to needs, save in exceptional cases
  • the court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable
  • a term should be considered unless the recipient would be unable to adjust without undue hardship
  • the marital standard of living is relevant but not decisive
  • the court will look at the global total and ask whether the proposed payment is a fair proportion of income available to the paying party.

Types of spousal maintenance

In most cases, spousal maintenance is dealt with alongside the overall financial settlement in divorce.

Joint lives maintenance

Exceptionally, the maintenance can be for ‘joint lives’, which means that the payments would continue until one party dies or the recipient remarries. Such orders are less common than they have been in years past.

Term maintenance

Often, spousal maintenance lasts for a stated period, which may be for some years (known as a term maintenance order), to enable the recipient to reestablish themselves and become independent. The length of the order may reflect the recipient’s childcare responsibilities and their ability to achieve or increase their own income.

Term maintenance orders can be extended if there are good grounds to do so. However, a court order can state that the term cannot be extended under any circumstances. These differences are important, and legal advice should be taken before reaching a settlement.

Nominal maintenance

The Court can order nominal spousal maintenance. The intention is that the person’s right to claim spousal maintenance in the future is kept alive, so that there is the possibility to reapply for a substantive amount in the future if needs dictate.

Clean break

The court has a duty to consider whether it is appropriate for there to be a clean break, so that there would be no future payments of spousal maintenance, and the court has the power to make a full clean break order dismissing all claims including spousal maintenance.

Capitalising maintenance

In appropriate circumstances, it is possible to capitalise spousal maintenance and to pay a capital sum in lieu of ongoing support. Further details are below.

Insurance

It may be possible to protect against the death of the paying spouse, for instance through insurance.

What is spousal maintenance intended to cover?

This can vary from case to case. However, typically, it is intended to cover the day to day living expenses of the recipient.

The recipient may be in the process of retraining to achieve an increase their own income, and the spousal maintenance assists them financially during that process.

Capitalisation of spousal maintenance

It can be preferable to have an arrangement in which there is a one-off capital payment to the recipient spouse, so that all future spousal maintenance claims are dismissed. This is known as capitalisation.

Capitalisation cannot happen in all cases. There may not be sufficient funds to finance the capitalisation. There may be too many uncertainties, so that capitalisation does not achieve a fair and reasonable outcome.

Whilst spousal periodical payments would automatically terminate if the recipient remarried, this would not affect a capitalised payment which has already been made or require it to be repaid. This is assuming that, at the time of the settlement, the recipient had no intention to remarry and did not mislead the other party concerning their position.

If there is to be a one-off payment to capitalise maintenance, the calculation of the amount to be paid needs careful consideration. The court and lawyers make reference to Duxbury calculations. These can be complex, particularly when forecasting the income and income needs of the parties in the future. This can be affected by the expected dates on which each party may be able to draw down on pensions, (both private and state), and other factors.

The fact that the recipient receives the lump sum up-front, which can be invested, is relevant. Further account is taken of the likely investment returns and other factors. This was the subject in the final report of the Duxbury Working Party published on 25 November 2024, which makes several key recommendations in the approach to be adopted in capitalisation cases.

How do I apply for spousal maintenance?

It is always best to try to reach an agreement concerning spousal maintenance. Making an application to the court should be used as the last resort.

The parties can negotiate between themselves, although it is advantageous to obtain legal advice prior to and during that process and before making any final agreement or arrangements. The parties can attend mediation which is designed to encourage them to reach their own agreement with supported discussions. Collaborative law can assist where each party has their own solicitor, and the solicitors and parties commit to cooperating with each other to try to reach an agreement.

If all else fails, an application can be made to court. The application can be made within existing divorce proceedings, which is the most common situation, however it is possible to make an application prior to divorce. Further, the receiving party can apply to court for an order confirming that an existing arrangement or agreement be incorporated into an order in certain circumstances.

Interim maintenance

It is possible to make an application for interim maintenance, which is a short-term temporary remedy pending a full financial settlement being reached. To make an application, divorce or dissolution proceedings must have been issued.

Both parties will provide a detailed breakdown of their monthly income and expenditure as evidence in support of their respective positions. The court will then determine the outcome at a court hearing.

The court tends to assess the application using a fairly broad brush, and is likely to disregard any expenditure which is seen to be a luxury or future expenditure. Each case is determined on its merits, and it is essential to have some legal guidance before bringing an application as the cost of making the application may outweigh the benefit sought. Likewise, legal advice is also sensible for the opposing party as it is likely that an order for costs will be made against the losing party.

Applications for interim maintenance may also be coupled with an application for help towards meeting legal fees, called a Legal Services Payment order. Learn about ways to fund your case.

What about tax and spousal maintenance?

There are no tax implications as such, in that the payments received are not taxable income and the paying party is not entitled to tax relief. Therefore, it is paid out of taxed income.

This is the position in England and Wales. The position may be different in foreign jurisdictions.

The receiving party could find that state benefits are affected by the payment, and this should be checked.

What if my ex-partner stops making spousal maintenance payments?

If spousal maintenance is not paid and no resolution can be reached regarding the payment of the arrears, then there are enforcement procedures which involve making an application to court. Enforcement action can include having a deduction made at source if they are a paid employee, seizure of goods and assets, a charging order against property and other options.

What if there is a change of circumstances?

This can arise in several ways, such as one party losing their job, one party living with a new partner, or the impact of changes in the cost of living. It is best to try to reach an agreement. An application for variation of maintenance can be made to the court, which can consider varying the amount of the original order in view of the change of circumstances. For instance, a paying partner who starts living with their new partner may be in a better financial position because they are relieved from having to pay all their own housing expenses. Similarly, the receiving party who lives with their new partner may be entitled to less spousal support for similar reasons.

If the recipient remarries, the order will automatically end. However, cohabitation is not the same as remarriage for the recipient party, and maintenance does not automatically end. It may, however, trigger circumstances to justify a review and variation application.

There are exceedingly rare cases in which there are orders for a secured periodical payments, which would not come to an end; see below for further details.

Read more on variation applications and a recent case won by Weightmans.

Secured periodical payments

This is a rare situation and would usually arise in high-net-worth cases, and then only in particular circumstances. The intention is that a fund is set up by the paying party from which the recipient draws spousal maintenance. Therefore, the payments will continue if the recipient remarries or if the paying party dies.

Does a prenuptial agreement affect spousal maintenance?

A prenuptial agreement can provide that one or both parties cannot make claims for spousal maintenance. Further, it can restrict the amount and/or term of a spousal maintenance order. The court would consider the prenuptial agreement and all the circumstances of the case. If the prenuptial agreement was prepared following well established guidelines, the court is likely to uphold the agreement unless it does not provide for the needs of the parties. ‘Needs’ in this context would be at a more basic level. Even if the court is of the view that it should depart from the prenuptial agreement, it is likely to do so only to the extent required to meet those needs.

Prenuptial agreements are increasingly used for the protection of wealth. For further reading see our guide to prenuptial and postnuptial agreements.

Can I apply for spousal maintenance without starting divorce proceedings?

It is possible to apply for spousal maintenance without a pending divorce, dissolution or nullity proceedings. It is necessary to show that grounds exist as a trigger for the court to consider making an order. The grounds include where the spouse has:

(a) failed to provide reasonable maintenance for the applicant; or

(b) failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family; or

(c) behaved in such a way that the applicant cannot reasonably be expected to live with the respondent; or

(d) deserted the applicant.

The jurisdiction is seldom used. It relies on the grounds set out above which are not needed in spousal maintenance applications within divorce proceedings. It is more common for spousal maintenance to be considered at the time of divorce. However, divorce is not inevitable and so using these grounds is an option.

Further, where the couple are living apart and one party has been voluntarily making periodical payments for the benefit of the other party for at least three months, you can apply for an order.

You need to consider the impact of the Child Maintenance Service, which restricts the court’s powers to make child maintenance orders, but it remains open to the court to make a spousal maintenance order.

Summary

Spousal maintenance can be an important aspect of reaching a financial settlement, and there are several points and nuances which need to be understood before making decisions or making applications to court. Whether the court makes an order, for how long, and the amount, is at the discretion of the court and you should always seek expert legal guidance.