Ongoing spousal maintenance can provide essential protection, particularly where one person has spent many years caring for children or supporting the other spouse’s career. However, it also leaves the former spouses financially connected, sometimes for considerably longer than either expected.
Before agreeing to such an arrangement, both parties need to understand that future payments may not be as predictable or secure as they thought.
Understanding ongoing spousal maintenance
Spousal maintenance, also known as periodical payments, is money paid by one former spouse to the other following separation or divorce. It is distinct from child maintenance, which is intended to meet the needs of the children.
Payments may be made for a fixed period, perhaps while the receiving spouse retrains or while young children remain at home. Alternatively, an order may continue until the recipient remarries, either party dies, or the court makes a further order. The latter is sometimes described as a joint-lives order, although such arrangements have become less common as courts increasingly consider whether financial independence can reasonably be achieved.
The court is required to consider whether it would be appropriate to terminate the parties’ financial obligations as soon as is just and reasonable. If maintenance is necessary, it must also consider whether payments should be limited to a period that allows the recipient to adjust to financial independence without undue hardship.
Reasons for agreeing to continuing payments
The appeal of ongoing maintenance is easiest to understand where there is a significant difference between the spouses’ incomes.
Maintenance may also be appropriate where a spouse needs time to obtain qualifications, rebuild a career or care for a child with additional need, and can reduce pressure for an immediate return to full-time work when doing so would be unrealistic. In some cases, an older spouse may have little prospect of becoming self-supporting after a long marriage, particularly if retirement is approaching and their pension is limited.
The risks for the receiving spouse
An order for maintenance creates a legal obligation, but it does not guarantee that the money will always arrive on time. The paying spouse may lose their job, become ill, retire, suffer a business failure or experience another substantial reduction in income. They may also refuse to pay, leaving the recipient to consider enforcement action while household bills continue to pile up.
Even when payments are always made on time, inflation can gradually reduce its value. An order may contain an index-linking provision or provide for staged increases, but this requires careful drafting. Without such protection, an amount that meets the recipient’s needs at the beginning may become inadequate several years later.
The recipient may also organise their housing and expenditure around maintenance that is later reduced or brought to an end. A mortgage lender might take the payments into account when assessing affordability, yet the liability could remain capable of variation. This creates a fundamental difference between receiving monthly maintenance and retaining capital outright.
If an informal arrangement has not been converted into a court order, the position can be more precarious. A promise made during negotiations does not offer the same protection as an enforceable financial order. Even a consent order approved by the court may be varied if it provides for continuing periodical payments and there is a material change in the payer’s circumstances.
Maintenance arrangements can change
The court has the power to vary or discharge certain financial orders, including orders for periodical payments. It can alter the amount, shorten the term and, in some circumstances, extend it. The court may also consider capitalising the maintenance obligation so that continuing payments are replaced by a lump sum or property adjustment.
Variation is not automatic because one former spouse asks for it, and the court will examine the parties’ updated financial circumstances and consider the statutory factors. Nevertheless, the possibility of a future application introduces uncertainty and expense for both sides.
A paying spouse cannot ordinarily end an order simply by announcing that they can no longer afford it. Unless an automatic termination provision applies in the original order, they should seek the recipient’s agreement or apply to the court.
Fixed-term maintenance may last longer than anticipated
A maintenance order can be made for a defined term, and there are cases where the recipient may apply to extend the term before it expires. In others, the order includes a statutory bar preventing an extension.
A paying spouse might believe that a five-year arrangement provides a definite end date, only to discover that the recipient can apply for more time. On the other hand, the recipient may assume that an extension will be available if financial independence has not been achieved, when the order expressly prevents it.
An application for extension will not necessarily succeed, and the recipient must explain why continuing support is justified, particularly where the original intention was that they should move towards independence. The court may examine whether reasonable efforts were made by the recipient to obtain employment, increase working hours, manage expenditure, or develop their earning capacity in some other way.
It should be remembered that further proceedings can involve legal costs, disclosure of updated financial information, and renewed conflict years after the divorce appeared to have been resolved.
The effect of remarriage and cohabitation
The remarriage of the receiving spouse ordinarily brings spousal periodical payments to an end although cohabitation does not automatically terminate spousal maintenance in the same way. Nevertheless, it can be relevant because living with a new partner may change the recipient’s needs and household expenditure. The paying spouse could apply for the order to be reduced or discharged, although the outcome will depend upon the reality and financial effect of the new relationship.
The remarriage of the paying spouse does not automatically bring their obligation to an end. A new marriage may create additional expenses or children, but a person cannot necessarily avoid an existing maintenance liability by choosing to take on new commitments. The court may consider the full circumstances, including the resources available within the new household, without treating the new spouse as directly responsible for supporting the former one.
Financial risks for the paying spouse
For the payer, the most obvious risk is that the obligation reduces their own disposable income for many years. This can affect mortgage affordability, retirement planning, and the ability to support a second family. A joint-lives order can also make it difficult to know when financial independence will finally be achieved, if ever.
Maintenance may continue beyond the point the payer expected to retire. Because retirement does not automatically end the obligation, a genuine reduction in income may justify a variation application. The court may examine whether retirement was reasonable, the parties’ ages, their pension incomes, and the extent to which the change had been anticipated when the original order was made.
The payer also faces the possibility that maintenance could be increased. If the recipient’s reasonable needs rise, the original payment becomes inadequate, or the payer’s income improves substantially, an application for an upward variation may be made. An increase is not awarded simply because the payer has become wealthier, as maintenance is generally connected to needs rather than an automatic sharing of all future income. However, the possibility of a further claim remains while the order is capable of variation.
There may also be legal costs each time the arrangement is reviewed or challenged. A dispute about income, cohabitation, retirement, or the recipient’s earning capacity can become disproportionate to the amount at stake.