Divorce can be a complex and emotionally taxing process, and one of the key concerns for many individuals is financial stability post-separation. A common question that arises is whether one is automatically entitled to maintenance, also known as spousal support (or alimony in the US), upon divorce in England and Wales. The answer is not straightforward, as entitlement to maintenance depends on various factors considered by the courts.
The Principle of Maintenance
In England and Wales, the court’s primary concern is to achieve fairness for both parties involved, taking into account the financial needs of each spouse. Maintenance is not an automatic right, and its awarding is based on necessity and the specific circumstances of the marriage.
Factors Influencing Maintenance Decisions
When deciding whether to award maintenance, the court examines a range of factors, such as:
1. Financial Needs and Resources: The court evaluates the financial needs, obligations and resources of each spouse. This can include income, assets, debts and any potential earning capacity.
2. Standard of Living: The court considers the standard of living that was established during the marriage, striving to allow both parties to maintain a similar lifestyle post-divorce, if possible.
3. Length of the Marriage: Generally, longer marriages might lead to more significant maintenance awards, be it due to the intertwined nature of the couple’s finances over time, a greater reliance from one spouse upon the other or otherwise.
4. Age and Health: The age and health of both spouses are taken into account, as these factors can impact employability and earning potential.
5. Contributions to the Marriage: Contributions are not limited to financial ones; they also include non-financial contributions like homemaking and childcare.
6. Any Prevailing Agreements: If there are any prenuptial or postnuptial agreements in place, these may influence the court’s decision, although they are not legally binding.
7. Duty to consider a clean break – the court is now under a positive duty in every case to consider whether a clean break can be achieved between the parties, severing all financial ties between the parties following divorce, either immediately or at some point in the future.
Types of Maintenance Orders
The courts may issue different types of maintenance orders, including:
– Maintenance Pending Suit- Temporary financial support provided by one spouse to another during financial remedy proceedings.
– Term Maintenance: Support for a fixed period, often granted on a ‘stepped basis’ with the expectation that the recipient spouse will become financially independent; and
– Joint Lives Maintenance: Support that continues until the death of either spouse or the remarriage of the recipient, an increasingly rare phenomenon in light of the court’s duty to consider a clean break.
Conclusion
In England and Wales, maintenance on divorce is not guaranteed or automatic. The courts aim to ensure a fair outcome that reflects the needs and circumstances of both parties. It’s essential to seek legal advice to understand your position and explore the possibilities for maintenance given your unique situation. A solicitor can provide guidance tailored to your specific circumstances, helping you navigate the complexities of divorce and financial settlement.
This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 15th January 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of the capital’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here