Maintenance (or periodical payments) for a spouse on divorce is decided on the parties’ needs. It will be most appropriate and only ordered where there is an on-going maintenance requirement for one spouse that cannot be met in any other way. Otherwise a clean break will be more appropriate. Spousal maintenance is very different from maintenance for children and will always be considered separately.
A mother with any but the youngest of children will be required to work to maintain herself, but reliance on state benefits will be considered only as a final option when no money is available elsewhere for maintenance. Often, an order for maintenance following divorce will be short term, such as when a party needs to obtain training prior to employment, or to allow children to grow to at least school age.
Sometimes a ‘nominal’ maintenance order will be made for a spouse, such as for £1 a year. This will keep the parties claim alive, and allow it to be increased by further order of the court should the need arise such as on the ill health, or inability to work of a mother caring for young children.
When a ‘clean break’ order is made, it would be usual to extinguish any right to on-going maintenance, either immediately or after a relatively short period.
Maintenance, when awarded, can always be varied up or down depending on each parties financial circumstances. Thus, it could be affected by the remarriage of one party, or unemployment, illness or an inheritance. Most maintenance orders will end on remarriage or cohabitation for a period exceeding six months of the person receiving maintenance and on death.
The court can no longer decide maintenance orders for children. Such maintenance orders are now made by the Child Support Agency, and calculated in accordance with their statutory formula.
Interim maintenance and maintenance pending suit
These can be claimed as soon as the petition has been issued, and are intended to be an emergency measures to provide an income before the final amount is settled or dealt with at a final hearing. Maintenance pending suit will end on the pronouncement of decree absolute.
The procedure for maintenance applications
The application for a maintenance order will be contained in the divorce or judicial separation petition, but will not be proceeded with by the court until further application. This is to allow the parties an opportunity to agree.
If matters cannot be agreed, notice to proceed with financial claims will be given by filing Form A with the court. A protocol must be complied with, dealing with the early disclosure of documents by way of Form E and disclosing evidence which will be relied upon.
There will then follow a financial dispute resolution appointment (FDR). The purpose is to consider the issues outstanding and to provide a further opportunity to reach agreement.
The hearing is conducted by a district judge, who will not have anything else to do with the case. If a final hearing proves necessary, this will be before a different district judge. All FDR discussions are completely confidential and privileged, so that if agreement cannot be reached the discussions cannot be aired at the final hearing. The judge at the FDR will however say what he would find were he to be trying the case. As a result, most cases settle at this stage.