Maintenance orders – where are we now?

If you divorce, the court can make maintenance orders (technically called spousal periodical payments).

This is separate from and in addition to child maintenance. Child maintenance is money paid by one parent to another, to help fund the costs of their children. Generally these days, parents are encourage to agree the amount between themselves, usually by using this calculator . This applies the formula of the Child Maintenance Service. If parents can’t agree then either of them can apply to the CMS who will assess and collect and enforce maintenance payments.

Back to spousal maintenance, this is money paid by one spouse to the other spouse. The legal background is section 23 of the Matrimonial Causes Act 1973, and section 25 sets out a list of factors the court takes into account. Perhaps what is more helpful are the recent decisions from the court about how to apply the law. We set out below some of the key points from recent cases.

The starting point is generally, maintenance is “needs” based. The court will look at your incomes and your outgoings. If one person has a shortfall, and the other person has a surplus, the court may consider making a maintenance order.  Also the court always has duty to consider whether a clean break is appropriate (which means no maintenance would be paid). In a nutshell the court has a lot of discretion, which means it is important to take legal advice because this is a tricky area.

The issue was recently considered by the Supreme Court in Mills v Mills 2018. The couple separated in 2000 and the husband was still paying maintenance. The wife made some bad financial decisions which meant her financial position had worsened since the separation. At the time of the divorce it was anticipated she would be able to get a mortgage and buy a house but instead the money was spent and she was left in debt. She applied to court to increase the monthly payments. The first court said no (because it was her bad financial decision making which created the need), but she appealed and the second court said yes, and increased the payments. The husband appealed to the Supreme Court who held the first court was right and should not have increased payments.

Where does this leave us? This case was fairly fact specific. Perhaps it’s part of a trend against “meal ticket for life” provision, but still, Mr Mills is paying maintenance to ex wife 18 years after they separated – just not at the level she wanted.

Please call us if you have any questions about maintenance.
Posted by Peter