When couples legally separate – either through divorce or the dissolution of a civil partnership – both they and the courts generally prefer a clean break settlement, where the ex-partners separate their finances completely.
However, this isn’t always possible. For example, if one person needs ongoing financial support after the divorce or dissolution goes through then spousal maintenance may need to be arranged.
This article takes you through the basics of spousal maintenance, and explains the key differences if you live in Scotland.
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What is spousal maintenance and when is it needed?
Spousal maintenance generally takes the form of a series of regular payments (usually paid monthly) designed to support the financially weaker person in a separating couple. It is usually best if you and your ex-partner can agree on a spousal maintenance arrangement amicably between you, but if this isn’t possible, one of you can apply to the court for a decision.
For the purposes of the examples we provide in the sections below, ‘person A’ refers to the more financially stable partner, while ‘person B’ is the financially weaker partner, who may need to claim spousal maintenance. In the event that children are involved, person B will also be the primary caregiver after the split.
Spousal maintenance is typically arranged when person B would not be able to cover their living costs on their own following the split. This might be because person B is on a lower income, or quit their job at some point during the relationship to look after the home or children. “Financial needs” is usually interpreted to mean living at the same standards as during the marriage or civil partnership.
Spousal maintenance is separate to child maintenance. This means that child maintenance may have to be paid even if spousal maintenance is not – say, if person B could support themselves but not the children as well. However, if spousal maintenance is paid to person B then childcare duties can be factored into this.
Another option would be for person A to pay person B a single lump sum instead of regular payments. This would basically involve person A “buying out” person B’s claim to achieve a clean break. This can also happen midway through the maintenance term, and is known as ‘capitalising’ the maintenance.
Spousal maintenance is rare for divorces or dissolutions that occur after less than five years of marriage or partnership. It may still be paid, but usually only over a short term period.
There is also ‘interim spousal maintenance’, which is another short-term form of maintenance usually paid during the process of getting divorced or dissolving a civil partnership. This can be a good way of keeping person B afloat and avoiding disputes until the separation is finalised.
How much is usually paid in spousal maintenance?
The amount of spousal maintenance that is agreed can vary quite dramatically, as there is no set formula (unlike with child maintenance). Normally, the court would take into account the income levels of both parties, how much person B needs to cover their living costs, and how much person B is likely to be able to earn in future.
Either person A or person B can apply to the court to have the amount increased or decreased during the term.
How long does spousal maintenance last?
Spousal maintenance can last until:
- Either person dies
If the person paying maintenance dies then the recipient is usually not legally entitled to payments from anyone else. It is possible, however, to insure spousal maintenance payments by getting out a life insurance policy on the payer.
- The payment term ends (if there is a term order setting one out)
When a term order is set out, it is usually with the assumption that the recipient of spousal maintenance will retrain and/or seek work in order to eventually become financially independent again. If this takes longer than expected, then they may be able to apply for an extension of the term.
- The financial circumstances of either party change
If the payer of spousal maintenance meets an adverse change in financial circumstances – or, conversely, if the recipient’s circumstances improve – then either party can apply to the court for the payments to be reduced or end. Maintenance can also be temporarily suspended in the former case.
- The recipient enters into a new relationship.
This last one can be complex. If the recipient of spousal maintenance remarries or gets into a new civil partnership then spousal maintenance usually ends. If they are just cohabiting in a new relationship then maintenance may be stopped, but not necessarily – it might just be reduced or unaffected.
How does spousal maintenance work in Scotland?
Spousal maintenance laws differ in Scotland, where it is referred to as aliment. Scottish courts tend to push for clean breaks in as many cases as possible. For one person to claim an ongoing maintenance – known as a ‘periodical allowance’ – after the divorce or dissolution, they must be able to prove that it is needed. Courts will usually try to arrange the division of assets such that both parties are on equal financial footing after the split, and failing that, tend to favour lump sum payments over allowances.
If this is not possible, however, then the court may order a periodical allowance to help the person who needs it. These are almost always on a set term basis, however, and rarely exceed three years in length.
Finally…
It is always worth consulting a divorce lawyer or solicitor as to your best course of action regarding spousal maintenance, including decisions you may make later on (such as whether to apply for an increase or reduction, and so on).
If you’re looking for a solicitor, you can find one through the Law Society’s free Find a solicitor service. Make sure you check reviews for the solicitor you’re planning to use, so you can see how other people have rated their service.
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