On divorce, the aim is usually to obtain a ‘clean break’ in the financial settlement which means that the parties are totally independent of each other. However sometimes this is not possible. If this is the situation what is taken into account?
The first issue to consider is why spousal maintenance liability should arise in the first place. The most common reason for this is needs. Usually a spousal maintenance order will only be made to alleviate significant hardship. The amount of the payment is based on what is required. Only in exceptional cases will it be more than this.
If the needs in question are not directly connected to the marriage then they would usually be ignored. For example in a case where an ex-wife applied for her maintenance to be increased on the basis that she had had a child with another man and that reduced her earning capacity and increased her needs. The Court dismissed that application!
How long the spousal maintenance is to be paid will always be considered. Even if there is some hardship in becoming independent the Court will try and end the maintenance as soon as possible. Sometimes this cannot be done but if it can then the Court will look at time limiting any payment. Often the Court will make an order for a specific period of time on the basis that at the end of that time the person receiving the maintenance would have to apply back to the Court saying they wanted it to continue. They would have to show they still needed the money at that stage.
Although the standard of living the parties have enjoyed during the marriage is relevant to the amount of maintenance paid it is not the be all and end all and as time goes on this becomes an increasingly irrelevant factor.
When looking at how much maintenance should be paid the Court will not look at individual items in a budget in any great detail but tend to look at the global total of funds available and consider whether what is being sought is a fair proportion of the pair’s available income. If that income includes bonuses then any payments may be partitioned with needs being met from the base salary and any additional discretionary items being met from the bonus, possibly on a percentage basis.
If an application to extend the term of the maintenance order is made then the Court would look at the basis of the original order and see whether the person receiving the maintenance should have been able to achieve independence and if not, why not.If there is an application to discharge a joint lives order the same examination will be carried out. However the Court do tend to make a decision in favour of the economically weaker party if the situation is finely balanced.
As with all financial matters within divorce it is important to obtain independent legal advice and our team at Beecham Peacock Solicitors Newcastle will be more than happy to advise on this or any other issue in relation to your separation.
