Is spousal maintenance set in stone?

The courts are frequently tasked with the difficult question of whether maintenance should be paid to a former spouse or civil partner following divorce or dissolution of a civil partnership and, if so, for how much and how long.

Spousal maintenance remains, and no doubt always will be, a highly contentious issue, not least given the possibility that payments can be ordered ad infinitum.

In practice, however, how likely is it that spousal maintenance will be payable for life, and are such orders set in stone?

Below we look at what is meant by spousal maintenance, including the likely duration of an order and whether any variations can be made at a later date.

What is spousal maintenance?

Following a divorce or dissolution of a civil partnership, where a former spouse or civil partner has insufficient income to support themselves, the financially stronger person within the relationship may agree, or be ordered, to pay ongoing maintenance payments.

Although, typically, most couples prefer to achieve a clean break by way of a lump sum payment that can be invested, and from which an income can be drawn instead, this isn’t always possible.  In these circumstances, the question of spousal maintenance will need to be considered.

How much is spousal maintenance?

There is no set formula for calculating spousal maintenance, rather the amount will vary on a case-by-case basis. Much will depend on the parties’ financial needs, the extent of their existing financial resources and how much they could potentially earn in the future.

Typically, payments will be decided as a set monthly amount, although they can also be expressed as a percentage of the payer’s income.

For how long is maintenance payable?

Spousal maintenance can be payable either for a fixed term of years or until a specific event, such as the youngest child reaching the age of 7, or it can be payable for the parties’ joint lives.

Where spousal maintenance is payable on a joint-lives basis, this means that maintenance is payable either until the person paying, or the one receiving it, passes away. That said, in all cases, maintenance will automatically stop should the person receiving the money remarry or enter into a new civil partnership.

The likely duration of spousal maintenance will, of course, depend upon the individual financial circumstances of the couple involved, although an order for payments on a joint-lives basis is increasingly rare.

In recent times, the overriding objective of the courts has been towards achieving a clean break, imposing term-limited orders and bringing spousal maintenance to an end as soon as possible.

Can payments be varied over time?

The law recognises that it would be unfair to set an order for spousal maintenance payments in stone, particularly given the possibility that the parties’ circumstances can easily change. By way of example, a paying party may lose their job or the receiving party may come into significant wealth.

Accordingly, where agreement cannot be reached, the parties can apply back to the court for a variation of the original order. However, given the wide discretion of the court to vary an order, this type of application runs the risk of backfiring on the party seeking relief.

Notably, in the case of Waggott v Waggott [2018] EWCA Civ 727, the Court of Appeal rejected the wife’s application to increase her spousal maintenance payments. Moreover, the court accepted the husband’s cross-appeal on the joint-lives term, ordering instead that the maintenance come to an end in 3 years time.

Taking early legal advice on the prospects of successfully increasing or decreasing spousal maintenance payments is crucial, enabling the parties to make an informed decision about whether to litigate or negotiate.