There appears to have been a clear judicial trend over the last two decades or so towards encouraging financial independence and clean break settlements between divorcing couples wherever possible. Despite this, the law has never abolished spousal maintenance, nor has it imposed a strict time limit in every case. Indeed, there are some cases where maintenance may still be ordered on a long-term basis and, in rare cases, for the lifetime of one party.
This article looks at whether spousal maintenance still happens in modern divorce cases, the general principles governing duration, the situations in which lifelong maintenance may be ordered, and how disputes about earning capacity and independence are resolved. It also considers whether a financially weaker spouse can be forced into a clean break and what events might bring lifetime maintenance to an end.
Does spousal maintenance still happen?
While lump sum settlements and clean break orders are often preferred these days, spousal maintenance remains an important way to achieve fairness in cases where one spouse cannot meet their reasonable needs from their own income or capital.
However, modern case law has emphasised that maintenance should not be awarded as a matter of routine. In Miller v Miller; McFarlane v McFarlane [2006], the House of Lords made clear that the aim is fairness, taking into account needs, compensation and sharing. Later cases, such as Wright v Wright [2015], reinforced the expectation that spouses should, where possible, work towards financial independence.
How long is maintenance usually paid?
The prevailing principle is that spousal maintenance should be paid for as short a period as is just and reasonable, while still meeting the recipient’s needs. This is often referred to as the transition to independence approach.
In practice, this means that:
- Many maintenance orders are made for a fixed term (for example, five or ten years)
- The term may be extendable if independence proves unrealistic
- Maintenance may step down over time to reflect increasing earning capacity
- Clean break orders are encouraged where feasible, particularly where capital can be used to offset income needs
Judges are required to consider whether it would be appropriate to impose a clean break under section 25A of the Matrimonial Causes Act 1973. If a clean break is not immediately possible, the court must look at whether one can be achieved in the future.
When might lifelong spousal maintenance be ordered?
Although increasingly rare, lifelong maintenance still has a place in certain situations. These tend to involve a combination of long marriages and limited realistic prospects for independence.
Common scenarios include:
- Long marriages with traditional roles: Where a marriage has lasted several decades and one spouse (often but not always the wife) has given up a career to raise children and support the other’s earning capacity, the court may find that it is unrealistic to expect full financial independence later in life. This is particularly so if the weaker spouse is approaching retirement age at the point of divorce.
- Age and health issues: If the financially weaker spouse is older or suffers from chronic physical or mental health conditions that significantly restrict their ability to work, lifetime maintenance may be appropriate. The court will not impose an obligation to work that is medically or practically unrealistic.
- Very limited earning capacity: Some spouses, despite best efforts, have limited education, outdated skills, or long gaps in employment history. Even with retraining, their earning capacity may never be sufficient to meet basic needs, especially when combined with housing costs.
- Compensation for relationship-generated disadvantage: In some cases, lifelong maintenance reflects compensation rather than pure need. Where one spouse has sacrificed career progression to enable the other to build substantial earning power, maintenance may reflect that imbalance, particularly where capital sharing alone does not adequately address it.
- Insufficient capital to achieve a clean break: Even where both parties would prefer a clean break, there may not be enough assets to capitalise income needs. In such cases, ongoing maintenance may be the only way to avoid serious hardship.
What if the spouses disagree about earning capacity?
Disputes about whether the financially weaker spouse can or should work are extremely common. One party may argue that the recipient is deliberately under-employed, while the other may say that their limitations are genuine.
The court approaches this issue by examining:
- Age and health
- Employment history
- Qualifications and skills
- The length of time out of the workforce
- The availability of suitable work
- Caring responsibilities, if any
The court does not expect a spouse to immediately earn at a level they might have achieved had the marriage not taken place. Nor does it accept speculative or optimistic assumptions about income without evidence.
In some cases, judges may attribute an earning capacity to a spouse if they conclude that they are capable of earning more than they currently do. However, the court will not simply assume that someone can walk into employment after decades out of the workforce and earn enough to support themselves without help.
Can a weaker spouse be forced into a clean break?
A financially weaker spouse cannot be forced into a clean break if doing so would leave them unable to meet their reasonable needs. While the court must consider a clean break, it must not impose one at the expense of fairness.
Clean breaks are more likely where:
- The weaker spouse receives sufficient capital to rehouse and generate income
- Maintenance needs can be capitalised through a larger share of assets
- Both parties are still relatively young and able to work
If a spouse is pressured into agreeing to a clean break without proper advice or adequate financial provision, such agreements can sometimes be challenged, particularly if they result in a clear injustice.
Who decides whether maintenance is for life?
If the parties cannot agree, the decision is ultimately made by a family judge, applying the section 25 factors of the Matrimonial Causes Act 1973. These include:
- Income and earning capacity
- Financial needs and obligations
- Standard of living during the marriage
- Age of the parties and duration of the marriage
- Physical or mental disability
- Contributions made by each party
- Any conduct that would be inequitable to disregard (rarely relevant)
Judges have wide discretion, and outcomes are highly fact-specific. No two cases are identical, and there is no formula that dictates when maintenance must be lifelong.
Can lifetime maintenance be changed or brought to an end?
Even where spousal maintenance is ordered on a joint lives basis, it is not necessarily fixed forever. Maintenance orders are variable, meaning they can be increased, reduced, suspended or terminated if circumstances change.
Common events that may end or alter lifetime maintenance include:
- Remarriage of the recipient: Spousal maintenance automatically ends on remarriage, regardless of need. However, remarriage of the paying party would not change the obligation to pay spousal maintenance to a former spouse.
- Cohabitation: While cohabitation does not automatically terminate maintenance, it can be grounds for variation if the recipient’s financial needs are reduced.
- Retirement: When the paying spouse retires, the court may reassess maintenance, particularly if income reduces significantly.
- Improved earning capacity: If the recipient’s income increases substantially, maintenance may be reduced or brought to an end.
- Serious illness or loss of income: Either party may apply to vary maintenance if there is a significant and unforeseen change in circumstances.
In rare cases, a court may later impose a clean break by terminating maintenance if independence becomes achievable.