Spousal Maintenance

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Spousal maintenance is usually referred to as periodical payments and is concerned with the parties income. These periodical payments are widely inconsistent throughout the jurisdiction with large regional variations.

The Matrimonial Causes Act 1973 section 25(2)(a) refers to the parties’ income, earning capacity and other financial resources. Section 25(2)(b) refers to their respective needs, obligations and responsibilities. Fairness is the objective and fairness comprises the principles of needs, compensation and sharing. The assessment of periodical payments has the overriding objective of fairness.

The authorities do not provide guidance or hard and fast rules in relation to the division of available income regarding periodical payments and the courts have no formula to work to.

The size of periodical payments may be above the needs of a party as the principle of both parties sharing the fruits of the former matrimonial partnership and of the compensation. Although it is now often the case that if the capital has been shared equally and is enough to provide for need and compensate for disadvantage, then there should be no continuing financial provision. There is no clear law regarding periodical payments but it seems if the capital has been equally shared and provides for need and compensates for any disadvantage, then there should probably be no continuing financial provision.

If a prospective or receiving party is cohabiting then it is usually seen as a relevant factor for the court to take into account when considering the appropriate level of spousal maintenance if at all to be defined in an order.

When making a final order it is the duty of the court to consider whether is is appropriate to impose a clean break as soon as the court considers it just and reasonable. Periodical payments if directed should considered for a limited term which would be sufficient for the receiving party to adjust at the end of the term. However, if the court is uncertain about the appropriate length of time then it can impose no term and put the onus on the party paying the periodical payments to seek a variation to the order in due course.

A joint lives periodical payments order is terminated if the receiving party were to get married or would also be specified to terminate if the receiving party was to cohabit with a new partner for 6 months.

Either party can apply to increase or reduce the level of an existing periodical payment, the court deciding based on the receiving party’s needs and the paying party’s ability to pay. This is based on income and not on any capital assets which are not able to be redistributed in a variation application.

Extensions of term orders are possible but the application must take place before the expiration of the original order. Exceptional circumstances are generally necessary to justify an extension of a term order however, again as in much of the law regarding periodical payments nothing is certain.

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