How do I accurately calculate maintenance payments to my ex spouse?


16 April 2021

The Court of Appeal has rejected an application by a husband that spousal maintenance payments to his ex-wife should end.

Mr Mickovski applied to the Court of Appeal for permission to appeal against a decision that he must continue to pay to his wife, Dr Liddell, £723 per month for spousal maintenance. The couple had separated in 2011 following an 11 year marriage. During the marriage, Dr Liddell had worked part time as a Cambridge University lecturer while Mr Mickovski practised as a solicitor.

Following the divorce, Dr Liddell returned to work full time to enable her to meet her outgoings and provide for the couples’ two young children. She had purchased a new property and was cohabiting. Mr Mickovski argued that due to her salary of £53,000 per annum, his maintenance payments to her should stop as her income from employment, together with his payments, was greater than her needs.

The Court of Appeal dismissed Mr Mickovski’s claim that Dr Liddell could meet her needs without spousal maintenance and accepted that Dr Liddell still needed the payments to enable him to meet her outgoings.

Instead, the Court of Appeal ordered that the next four year’s spousal maintenance payments to Dr Liddell be paid as an immediate lump sum of £34,000 (known as capitalisation) and he had to pay her costs at £3,543.

There are no hard and fast rules relating to spousal maintenance. While s25 of the Matrimonial Causes Act sets out the principles of how matrimonial finances should be separated, the approaches that the courts take have been shaped by case law and are subject to interpretation. All decisions by the family court are based on the facts of the case.

The court must consider a clean break between the parties in every case, though it is not always achievable. A clean break means that all claims in relation to matrimonial assets are settled and neither party can make a claim against the other in the future (save for child support).

However, the court will not grant a clean break if a spouse is unable to meet their needs. Of course, one person's interpretation of needs can be very different from another's. The family court has often used the term ‘generously interpreted’ to deal with needs. In reality, ‘need’ entirely depends on the lifestyle of the couple before they separated when viewed from the prism of the income resources now available.

In deciding whether spousal maintenance is appropriate and for how long, the court will consider a number of factors including:

  • the length of the marriage
  • whether there are minor children
  • whether there is an income disparity between the couple
  • how their housing needs are met
  • whether a spouse has a continuing financial need
  • whether a spouse has a diminished earning capacity.

Spousal maintenance is ordered by the court to enable the financially weaker spouse a period of time to adjust to being financially independent, without significant hardship. There is no set formula.

Due to this uncertainty, a Private Member’s Bill to amend the financial provisions of the Matrimonial Causes Act has been proposed. If approved, this will give greater clarity and guidance to the court in deciding on matrimonial finances. We will write on this again if the Bill makes progress.

The family lawyers at Birketts have a range of experience in dealing with both needs and high net worth cases on divorce or separation. We can advise you on the appropriate steps to take when there is a significant difference between couples’ incomes. We can offer a range of options including family mediation and collaborative law. We can advise on out of court solutions on issues of continuing maintenance.

How much should my ex-husband pay in maintenance?

There is no automatic right to spousal maintenance and each case will be based on its own circumstances. There is no set formula for spousal maintenance and will depend on the financial needs of the parties taking into account the recipient’s needs, own income and ability to earn income.

How is maintenance calculated in a divorce?

There is no set formula and the amount payable depends on the payer’s net income amongst other factors such as the recipient’s needs, own income and ability to earn income.

Do I have to pay child maintenance if it's 50 50 custody?

If parents cannot agree the courts have limited powers in respect of child maintenance payments, which lies primarily with the CMS. If the day to day care of the children is shared equally between the parents then the CMS would not expect maintenance to be paid from one parent to the other. There are limited exceptions to this.

How long does divorce maintenance last?

A maintenance order is usually paid on a monthly basis and can be set for a limited period of time (a term of years) which may or may not be extended or until one party dies (known as a “joint lives order”). Joint lives orders are becoming increasingly rare with the emphasis being on how best to achieve a clean break as soon as is practicable.

Do I have to pay spousal support if my ex is living with someone?

If your ex remarried then spousal maintenance would come to an end. However, living with someone else in a relationship, without marrying or entering into a civil partnership, doesn’t automatically mean that payments will stop. It may be that you seek to agree to reduce the amount or apply to vary the order.

For further advice in relation to spousal maintenance, please contact Debbie Lloyd via [email protected] or 01603 756433. Alternatively, please get in touch with another member of the Birketts Family Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2021.

Authors

Debbie Lloyd

Senior Associate, Mediator and Collaborative Lawyer

+44 (0)1603 756433

+44 (0)7854 833568

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