Often, one of the most divisive questions following separation is not what each spouse earns now, but what they could reasonably be expected to earn in the future.
This issue can arise from both directions; one spouse may have spent years outside the workplace raising the children and is being told they should now support themselves. The other may have carried the financial burden throughout the marriage and feel that a potential for spousal maintenance assumes they will continue working long hours, perhaps long after they had intended to slow down or retire.
In practice, divorce will often mean that neither spouse can preserve every aspect of their previous standard of living. The outcome depends on a detailed assessment of the family’s circumstances, what is realistically achievable, and how financial independence can be reached without causing undue hardship.
The court looks beyond the current payslip
When the court decides financial arrangements during divorce, it considers the factors set out in section 25 of the Matrimonial Causes Act 1973. These include each party’s income, earning capacity, property, and other financial resources, both now and in the foreseeable future. The court must also consider financial needs and obligations, the standard of living during the marriage, the parties’ ages, the duration of the marriage, any physical or mental disability, contributions, and the value of benefits lost because of the divorce.
Returning to work after years away
A spouse who did not work during the marriage is not automatically excused from seeking employment after divorce. Financial orders increasingly focus on whether the parties can become independent of one another, provided this can be achieved fairly, and it is common for the court to expect a non-working spouse to look for suitable work or to develop an earning capacity over time.
That does not mean the court will assume that somebody who left a profession 15 years ago can return immediately at their former level. The ages and needs of any children are particularly important; for example, a parent caring for a toddler, a disabled child or a child with significant educational needs may have far less scope to work than a parent whose children are independent. School hours do not always translate neatly into working hours, especially when school holidays, wraparound care, illness, and travel are taken into account. The availability and cost of childcare must therefore be assessed rather than assumed.
Where both spouses agreed one would concentrate on home and family while the other developed a demanding career, the economic consequences of that arrangement do not disappear on separation. A long absence may have damaged pension provision, seniority, and future earning prospects in a way that cannot be repaired completely.
Increasing part-time hours
A spouse who already works part-time may be expected to increase their hours, but usually only where there is a credible route to doing so. The court will want to understand whether more hours are actually available, whether additional childcare would absorb much of the extra pay, and whether health or caring commitments place genuine limits on the working week.
A financial order might be structured on the basis that maintenance continues at one level while a young child is in primary school, then reduces or ends after a reviewable period. This is sometimes described as a transition towards independence. However, a court should be cautious about imposing a fixed end date if the evidence does not show that the recipient will be able to adjust without undue hardship. What looks achievable in theory may not be secure enough to justify an immediate clean break.
Refusing to work or choosing a lower-paid role
Problems arise where a spouse appears to be avoiding employment or deliberately limiting their income. A court is unlikely to reward a person who is capable of working but refuses to apply for jobs in an attempt to maximise spousal maintenance. It may assess that person on a realistic earning capacity and calculate their needs on the basis that they should contribute more towards them.
The same issue can arise if somebody leaves well-paid employment for a much lower-paid position during the divorce. Resigning without explanation shortly before a financial hearing, particularly after threats to ensure the other spouse receives nothing, is likely to attract greater scrutiny.
Can the main earner be expected to carry on?
A spouse cannot necessarily reduce their income unilaterally and expect the court to make the other household absorb the entire loss. If a 50-year-old professional chooses to move to a three-day week immediately after separation, despite having dependent children and substantial family commitments, the court may ask whether that decision is reasonable and affordable. If it is not, the financial assessment may continue to reflect a higher earning capacity.
That said, there is no rule that forces the payer to remain on the career treadmill forever. A high income may have been achieved through exceptionally long hours, international travel, night shifts, or work carrying serious physical and psychological pressure. The court should examine whether that pattern is sustainable, not merely whether it occurred in the past.
Retirement and reducing work in later life
The court can take anticipated retirement income into account and can consider whether the proposed date is reasonable. State Pension age, the normal retirement pattern in the occupation, health, pension resources, and the original expectations of the parties may all be relevant. So will the length of the marriage and whether the recipient spouse has had a fair opportunity to develop resources of their own.
A surgeon, construction worker and office-based consultant may face very different practical limits. Even within the same profession, two people of the same age may not have comparable health or job security. The court is unlikely to begin with the proposition that everybody must work to the latest theoretically possible age; on the other hand, an early retirement which would leave needs unmet may not be treated as decisive simply because the payer would prefer to stop working.