The measure of maintenance

What is the Measure of Maintenance?” How does the court quantify spousal periodical payments?

This can be an impossible question to answer as there are no firm guidelines. The reason for this stems from the absolute discretion and wide powers given to a judge when deciding ancillary relief claims. It is intended that each case should be decided on its individual facts and merits and that judges should not be subject to the straitjacket of precedent. They are encouraged to be imaginative when seeking solutions and that will often be the case.

This said however there are some guidelines. In the 2006 case of Miller the House of Lords declared that there were three general principles to reach the objective of a fair settlement between the parties. These were described as firstly the parties’ relationship generated needs, secondly compensation for relationship generated disadvantage and finally a fair sharing of the financial fruits of the marriage. As to the latter it has been decided that an equal share is the starting point which will only be varied if there is good reason.

The Miller guidelines go some way to deciding the division of capital assets. What the court will do is first determine what matrimonial assets there are and come to a decision on the financial position of each spouse. Once this has been done the judge will then decide on the shares from the starting point of an equal division. The third and next stage will be deciding whether the division of assets meets the needs of each party. It is only if it does not and a clean break does not appear possible that maintenance will come into play and be ordered. And that is where uncertainty as to how much will reign.

The court will be looking for a fair settlement but also one that ensures each party and any children have enough to supply their needs set as close as possible to the standard of living which they enjoyed during the marriage. Available income from all sources including tax credits and benefits will go into the pot. The factors which the court must consider in section 25 (2) of the Matrimonial Causes Act will be related to what is in the pot.

The assessment of needs can only be an exercise in judgement and discretion for the judge. No two cases are ever identical and even if they were there would be no guarantee that two individual judges would come to the same conclusion. What is fairly certain however is that a clean break with no order for on-going maintenance (or nominal maintenance, or maintenance for a short period) will be ordered whenever possible.

In the 2008 case of VB v JP it was said that; “…on the exit from the marriage, the partnership ends and in ordinary circumstances a wife has no right or expectation of continuing economic parity (‘sharing’) unless and to the extent that consideration of her needs, or compensation for relationship-generated disadvantage so require. A clean break is to be encouraged wherever possible.”

So what has to be accepted is that the legal guidelines are at best imprecise. There are no precedents to follow and each case will depend upon its own facts and quite possibly what the judge had for breakfast on the morning of the trial. Unlike maintenance for children, spousal maintenance does not involve a fixed percentage.

The question for a divorcing spouse is where this leaves him (or her). The answer can only be to make every effort to agree financial matters directly with your spouse and not leave matters to the vagaries of the court system. Mediate, negotiate, and consider a collaborative approach but only go through the court process if there is really no alternative.

How Much Maintenance on Divorce


This can be the million-dollar question in financial proceedings on divorce. How much maintenance can the wife (although it can also be the husband) claim.

It is never an easy question to answer. It is near impossible to be certain about the amount of maintenance that would be ordered. The reason for this is the wide power and discretion given to a judge in ancillary financial relief disputes. Each case has to be decided on its individual facts and the rules are not very firm. Previous decisions are little more than guidelines and cannot be considered as precedents which would bind the court.

This said however it would be unfair to say that the amount of maintenance which will be awarded could depend upon what the judge had for breakfast. There is one overriding principle which must be followed and that is of fairness. The flexibility inherent in the law of ancillary relief must be exercised so as to give a fair outcome.

In most cases, the search for fairness begins and ends with the needs of the divorcing spouses. In the great majority of cases the judge will try to ensure that each party and their children have enough to supply their needs, set as close as possible at the level of the standard of living which they enjoyed during the marriage. The court will weigh the available income from all sources including state benefits against the parties needs giving weight to such other factors as may be relevant and which the law requires to be considered. For example a short childless marriage will only result in minimal maintenance for a very short time.

The amount of maintenance to be awarded can be affected by what is referred to as relationship generated disadvantage. An example of this would be where a wife has given up what would have been a successful career because of the marriage. Even where the amount of maintenance awarded is sufficient to meet a parties needs an additional amount to compensate for the loss of career prospects can result in a more generous award being given. This will usually only apply to fairly long marriages however.

In general future resources will only be shared if justified to satisfy a party’s needs. The intention of the court will be to give both spouses an equal start on the road to independence.
It must therefore unfortunately be accepted that there is now no certain way of telling how much maintenance will be awarded. The legal guidelines are subjective and imprecise and based upon needs which can be interpreted either generously or restrictively depending upon a need for compensation in respect of relationship generated disadvantage. Case law provides no precedent and little assistance and each case will depend on its own facts.

At one time maintenance would be decided by looking at (usually the wife’s) requirements and sifting the reasonable from the unreasonable. What was left could be kept by the husband. However the certainty although often un-fairness of this approach came to an end after the case of White v White in 2000. This rather famous case brought about the presumption of equality when dividing capital assets but did little for maintenance other than remove the criteria of ‘ reasonable requirements ‘. There is now no firm precedent for the court to follow but the following solution is suggested.

The court should be asked to compare the parties net positions once fixed and essential outgoings such as mortgage and reasonable living expenses are met. These will often be in inverse proportion to the capital split as where for example a husband loses his share of the house he will have increased accommodation expenses. With this taken into account a general guideline should be for the parties to be left with an equal share of surplus income.