Maintenance for Adults
This is an introduction to a very wide topic - you will need to obtain proper expert advice about your own situation.
To remain entirely fair and gender neutral, in this introduction to the subject I use the term “payee” to mean the person who is hoping to receive maintenance, and the term “payer” to mean the person who is likely to have to pay maintenance. In reality the payee is statistically likely to be female, and the payer is statistically likely to be male, but it is not always so.
Maintenance can be a particularly contentious subject. Maintenance for children tends to be less contentious, because most people wish to support their children financially and the level of Child Support is set by the Child Maintenance Service, using a relatively simple formula which applies in virtually every case with very limited scope for individual variation.
But maintenance for husbands/wives, is more contentious and is still the province of the court so if the parties cannot reach an agreement between themselves, the decision will be made by a judge, on a “discretionary” basis, according to what that judge thinks is fair and reasonable. Court applications are extremely expensive and very destructive.
Some clear and simple points.
I aim to provide a simple summary of this topic which will be equally helpful to everybody, male and female, rich and poor. That is impossible because the topic is too wide ranging and complex. But it is possible to make a few simple introductory points:
All discussion of maintenance arrangements between adults comes second to the question of Child Support. For many families of relatively modest means, once Child Support has been calculated and paid, there is very little scope for further maintenance for the adult payee. So discussions of maintenance tend to take place only in relatively wealthy families.
There is no legally enforceable obligation to pay maintenance to a former partner if you have not been married. So maintenance generally only becomes an issue between divorcing couples.
The question of maintenance has to be seen in the context of a broader resolution of financial issues between a divorcing couple including the sharing of any assets. In discussing how to divide up assets, property and savings (and to some extent pensions) there is an assumption that fairness and equal sharing are somehow linked. So a divorcing couple can often expect a broadly equal division of the assets and pensions between them, at least in most cases. But there is no assumption that a husband and wife should enjoy equal incomes in the years following separation, or that a maintenance order should seek to make their incomes the same or similar. The basic approach is fundamentally different and focuses mainly on financial need.
There is no simple rule that the payer is expected to fund the payee to continue the same standard of living the parties may have enjoyed during the marriage. The standard of living enjoyed during the marriage is relevant, and higher levels of maintenance are agreed and ordered amongst wealthy families than amongst those who have less money. But both parties, and particularly the payee, will probably have to accept some reduction in standard of living following divorce. The statistics show that most payers (i.e. most men) have achieved a higher standard of living within a few years after divorce than they enjoyed during the marriage, whereas most payees (i.e. women) never return to that standard. But that fact is not recognised in the law’s approach to this subject, and it is not true for everyone.
There are no such simple rules in the rest of this topic.
Would a court make a maintenance order at all?
The court can’t make a maintenance order where the parties have not been married, or where the payee has married again.
Even where a court can make a maintenance order, the payee has to persuade the judge that it is appropriate to do so. The law says that court should avoid making maintenance orders except where it would be inappropriate not to, but that rule is often honoured in the breach, and in practice judges regularly make maintenance orders. There are two basic rules.
Firstly there has to be a significant difference between the parties’ incomes, which is often the case in practice.
Secondly that difference usually has to be in some way connected to “choices made within the marriage”, for example when there are children, often one parent puts his or her career on hold, whilst the other presses ahead to try to earn money to look after the family. Thirdly the marriage has to have been reasonably long (lawyers tend to think of anything more than about seven years as “long” but there is no official rule) or the payee has to be in middle age, with no real prospect of earning a living. After a short marriage, the most you can expect is a short maintenance order, lasting perhaps a couple of years.
How long will a maintenance order last for?
If a judge makes a maintenance order, s/he has to decide how long it should last for. Traditionally most maintenance orders were made for “joint lives” that is to say until the payee dies or remarries. But on the whole the modern tendency is to consider making an order limited to a few years duration, perhaps six or eight years, or until the children are grown up, with the proviso that the payee can come back to court for an extension if necessary.
Even if the judge makes a long maintenance order the implicit expectation is that it will vary if the payer’s income reduces significantly, perhaps on retirement.
How do the courts work out the amount of maintenance to pay?
There is no arithmetical formula to calculate maintenance in the court comparable to the formula used by the CMS.
Where maintenance is an issue, the law focuses on the parties’ “reasonable needs”. So both payer and payee will need to produce a fairly detailed budget projecting how much they will need to live on in the future, and what other sources of income they have in terms of earnings, state benefits etc. Analysing your present expenditure is a good starting point for this.
A judge, who is asked to determine the correct level of maintenance will look at the payee’s budget first. The budget should not be too restrictive – you may think you are able to live very modestly, but you are unlikely to receive more than the figure you ask for. Equally a budget which is too high will not be accepted. Lawyers use the phrase “reasonable needs generously stated”. The difference between this and your income is the payee’s ’need’. The basic idea is that the maintenance should be enough to meet the payee’s need, but that is a very elastic term. In cases involving people who have a lot of money judges don’t hesitate to say that the payee ‘needs’ £100,000 per annum to live on. The Benefits Agency says no-one needs more than about £100 per week.
The judge will then try to establish the payer’s income, and also look at his/her budget. Again the budget must be realistic, because it is unwise to set your needs at a level which is too low to be sustainable. On the other hand, if the payer sets his/her needs at a high level, it is very difficult to argue that the payee needs significantly less.
The judge then cross refers the payees need against the payer’s ability to pay and comes to a figure which s/he thinks is reasonable in the circumstances. You can never be certain what number the judge will choose.
How much maintenance will the court order?
There used to be a rule which said that a husband should give his ex-wife about a third of his net income (including Child Support) but that has been officially disapproved.
But you can say firstly that the judge is unlikely to order the payer to pay maintenance at a level which is worth going to court for, unless s/he has what most people would regard as a pretty decent income – say £40,000 to £45,000 before tax or more.
Secondly most reported cases seem to come in the region 30% to 40% of the payer’s net income, but that can only be taken as a guide, and remember that most of the reported cases concern people with incomes in the region £200,000 or more.
Families with very high incomes - going beyond need.
Most cases about maintenance which go through the courts focus on “needs”. As we have said, need is an elastic term, and there are plenty of cases in which judges say someone “needs” more than £100,000 per annum to live on. But even so there is a limit to how far the concept of need can be stretched.
In some families the payer has enough income to meet both parties’ needs, even expressed very generously, with surplus income left over. In those cases the courts can go beyond need, and apply concepts like “sharing” and “compensation for relationship disadvantage” to the excess. If you think you might be in this category, you should naturally obtain specific advice.
We hope this discussion has helped. You may want to look at our ‘frequently asked questions page’ or contact us if you have question.