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Austin Kemp provides a pragmatic and honest approach to the individual's journey through Family Law issues. They demonstrate a willingness and capacity to respond to challenging and unpredictable circumstances. The professional, yet personal, service is naturally client centred, but with a realistic and informed view of children's needs. And it has been heartening to have such a caring team walk beside me in the long journey.
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Many argue that divorce law in England and Wales, including sometimes lengthy spousal maintenance payments, is outdated. Founder of the charity Marriage Foundation, Sir Paul Coleridge, reportedly told The Times that people could only end a marriage “via an expensive and out-of-date system”.
Indeed, London has become known as the ‘divorce capital’ of the world, in part due to the English and Welsh courts’ reputation of generosity towards the financially weaker party, when compared to other legal systems.
Whether and exactly how divorce laws will change, remains to be seen. As specialist divorce solicitors, when clients come to see us, we are often questioned about spousal maintenance before anything else.
When it comes to divorce and financial settlements, spousal maintenance is one of the most common topics we are questioned about. In this article, we’ll explain what spousal maintenance is, who could be entitled to it and how you can work out how much spousal maintenance you may receive.
When a couple divorces, one spouse may pay the other regular, ongoing payments as part of the financial settlement. These payments are known as spousal maintenance.
Spousal maintenance is only for married couples. If you never married your partner, you would not be able to apply for spousal maintenance upon the breakdown of your relationship.
Spousal maintenance is the regular, ongoing payments paid from one spouse to the other as part of the divorce financial settlement.
It is also very separate to child maintenance, which is there to solely support children.
Spousal maintenance is a highly complex area of law and it is important to obtain independent legal advice regarding your particular circumstances.
Those who have been in longer marriages could be more likely to receive spousal maintenance. In general, those who have been married for less than 5 years may not get spousal maintenance or may only have spousal maintenance paid for a short amount of time.
If a couple has been married for a particularly long time, one spouse may need to pay the other maintenance for life. This is known as spousal maintenance on a ‘joint lives’ basis.
Although maintenance paid on a ‘joint lives’ basis is possible, it is becoming less and less common.
Another factor to consider in addition to how long a couple have been married, is whether or not the parties are working.
If, for example, one spouse has given up work to become a homemaker and look after the home and/or the children, while the other spouse has continued to work and progress their career, the homemaker could argue that he/she is entitled to spousal maintenance because they are unable to support themselves financially now that the marriage has ended.
Particularly if the marriage in the above example was a very long one, spousal maintenance could be more likely to be made on a joint lives basis.
How old each spouse is, may also have a bearing on spousal maintenance, as will whether or not there are any children involved and who the children are going to be living with.
Spousal maintenance should only be paid where one spouse is unable to support themselves financially without it.
In general, those who have been married for a longer period of time may be more likely to receive spousal maintenance.
In some instances, if the marriage has been particularly long, spousal maintenance could be paid on a ‘joint lives’ basis. This means that the maintenance will be paid for life. However, this is becoming less common than it once was, as more and more couples strive for a ‘clean break’ divorce.
If a marriage has lasted for less than 5 years, spousal maintenance may be less likely to form part of the divorce settlement. Alternatively, it could be that a shorter marriage may result in spousal maintenance only being paid for a short amount of time.
However, every case is different, which is why it is important to get legal advice for your specific circumstances.
If, for example, one spouse gave up work to be the homemaker and the other spouse continued to work, the homemaker could make a case that they are entitled to spousal maintenance because they cannot financially support themselves now the marriage has come to an end.
Factors such as the age of each spouse and whether there are any children involved, could affect the amount of spousal maintenance (or if it forms a part of the financial settlement at all).
How long spousal maintenance will last and how much it will be, or whether it will form part of the financial settlement at all, will depend on your particular circumstances.
Most importantly, it is only if one spouse is unable to support themselves financially without spousal maintenance, that spousal maintenance should be paid.
It is important to note that as every marriage is different, whether or not spousal maintenance may be paid, for what period of time and the amount the spousal maintenance could be, will vary from couple to couple. This is why it is essential to seek legal advice regarding your particular circumstances.
As part of the financial settlement process, you and your spouse will be required to carry out full and frank disclosure of your finances.
In order to roughly calculate possible spousal maintenance, you will need to work out both your and your spouse’s income and expenditure. Make sure that you do this on the basis that you will be living apart from each other. It is also important to understand both of your potential future earnings.
Your divorce solicitor should be able to advise you of approximately how much spousal maintenance you could be entitled to receive.
Spousal maintenance can be an extremely complex area of law. It is highly recommended that you speak to solicitor for advice tailored to your individual circumstances.
Many couples want a ‘clean break’ financially from their spouse when they divorce.
By its very nature of regular, ongoing payments, spousal maintenance is incompatible with a clean break.
Sometimes, one spouse will pay the other a lump sum, instead of regular ongoing maintenance. The spouse receiving the lump sum can then invest this and receive payments from this lump sum, instead of maintenance payments from their ex-spouse.
Again, this is a highly complex area of law and it’s important to get independent legal advice from a specialist solicitor before entering into this type of agreement.
If the spouse receiving the maintenance remarries, spousal maintenance usually stops.
This is not necessarily the case if the former spouse in question moves in with a new partner and does not marry. However, a former spouse cohabiting with a new partner could be enough of a reason for the former spouse who is paying the maintenance payments, to be able to apply to a court in order to reduce how much they are paying.
As mentioned above, spousal maintenance can be made on a joint lives basis. If this is the case, the maintenance payments will normally stop when one spouse dies. It is possible to insure spousal maintenance payments, so that you could continue to receive an income if the spouse making the payments died. Speak to your solicitor for more information about this.
Spousal maintenance can also be made for a fixed amount of time and will come to a stop when this ends. This is now more common than joint lives spousal maintenance.
As we mentioned above, one of the scenarios where spousal maintenance could be reduced is if the person receiving it moves in with a new partner.
It is possible to get spousal maintenance either increased or decreased, depending on the circumstances.
For example, if you pay spousal maintenance to your former spouse every month and you now earn much less money than before, you may be able to apply to get the amount you pay reduced.
Equally, if your former spouse is earning much more than they were before, you may be able to get your spousal maintenance increased.
Sometimes, it may be possible to later capitalise spousal maintenance payments. This means turning them into a lump sum and stopping the payments.
If you want to make changes to the amount of spousal maintenance you pay or receive, it is important to seek legal advice regarding your circumstances.
When looking at spousal maintenance, it is important to understand both yours and your spouse’s income and expenditure.
As part of reaching a financial settlement upon divorce, a full and frank financial disclosure is required from each party. Here, you should be able to see what yours and your spouse’s incomes are.
This is why it is important to take a close look at your expenditures and your incomes. You should also look at how much each of you could potentially earn in the future.
When calculating incomes and expenditure, it is important to do this on the basis that you will be living apart. It is not uncommon for people to find that they are financially worse off after divorce, as income that supported only one household now has to be split over two.
Your solicitor should be able to advise you on the approximate amount of spousal maintenance that is reasonable to expect in your circumstances.
Over the past few years, there have been a number of cases in which judges have seemed to lean towards awarding spousal maintenance for a fixed term, rather than on a joint lives basis.
Indeed, in one case, a divorcing wife was reportedly told to get a job when she divorced, rather than “living off her ex-husband”.
However, earlier this year, a man was ordered to increase the amount of money he paid to his former wife, as she was said to be “unable to meet her basic needs”, despite the fact that they had been divorced for well over a decade.
Following this, the man in question, Graham Mills, was granted permission to appeal in the Supreme Court. However, he reportedly said he would need £50,000 in order to do this.
The decision by the Court of Appeal that Mr Mills should increase the monthly payments to Mrs Mills from £1,100 to £1,441, may seem like a strange one.
Indeed, this case has caused many waves in the press, as it is seen as a sign that the legal system is extremely outdated, due to the fact that a man who has been divorced for 15 years can be ordered to pay his ex-wife an increased amount of maintenance after such a long time.
In 2002, Mrs Mills had received a £230,000 lump sum and £1,100 a month in maintenance payments, as part of their divorce settlement. She subsequently lost the money and got into debt after what the court called “unwise investments”. Mr Mills kept the businesses when they divorced.
Two years before the case went to the Court of Appeal, Mr Mills had gone to court to try and stop the payments. He argued that he shouldn’t have to continue to support his ex-wife. However, he was ultimately ordered to actually increase how much he paid his wife in maintenance.
Mrs Mills’ ability to work and financial situation had reportedly been “hindered” by health problems during the last decade.
The barrister representing Mrs Mills, told the Court of Appeal that she had “over-financed” and that the money in 2002 had not been enough for her to buy a house which “was good enough in her view” so it was “reasonable for her to get a mortgage”.
The court was reportedly told that the Mr Mills had been able to draw dividends from his business interests of up to £200,000 a year.
Mrs Mills later went on TV to defend her herself after she was labelled a ‘gold digger’ by the press. She said that she needed the money for her 21-year-old son, who was still “dependent” and “in full-time education”.
There is no doubt that if Mr Mills does find the funding to take his case to the Supreme Court, the outcome will be closely monitored by those both inside and outside of the legal profession.
Sometimes, it is possible to reach an agreement with your spouse about spousal maintenance without going to court.
Court should usually be viewed as a last resort.
Some couples are able to reach an agreement between themselves. However, even if you are able to do this, it is advisable to get legal advice regarding your circumstances, so that you fully understand what your rights are.
It is also worth noting that it is vital to get your agreement regarding your financial settlement made into a court order. Speak to your solicitor for more information about this.
If you are unable to reach an agreement by talking to your spouse directly, you could ask your respective solicitors to negotiate on your behalf.
During the breakdown of a relationship, emotions can run high and discussions about your future can often turn into arguments. The more formal approach of solicitor to solicitor negotiation can sometimes help couples to reach an agreement about how their finances will be split and whether spousal maintenance payments are appropriate.
Solicitors who are experienced in collaborative law could use this technique to help you and your spouse reach an agreement regarding spousal maintenance.
This approach is based on you and your spouse and your respective solicitors meeting and working together to reach an agreement.
Some couples find that this approach is less confrontational than other methods and can therefore help them to agree on a financial settlement.
Mediation, where an independent third party aides discussions between a couple, with the aim of coming to an agreement about various issues, can sometimes help couples to reach an agreement regarding spousal maintenance.
Most importantly, it is always a good idea to seek independent legal advice regarding your particular circumstances.
Our expert family law solicitors can help you with a range of legal issues relating to spousal maintenance, including:
For more information call our divorce solicitors on 0845 862 5001 or email firstname.lastname@example.org.
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