Spousal and child maintenance – what’s the difference?

Spousal maintenance

Spousal maintenance can be ordered for married couples who separate. It is payable to you if your income or assets are insufficient to meet your daily needs. The maintenance is to financially support you rather than your child. It can be agreed between you and your spouse or ordered by the court. The courts will take into consideration the income needs of the recipient and the income of the paying spouse.

If a spousal maintenance order is in place, either of you can apply to the court to have the level of maintenance varied. The length of time that the payments are to be made can also be extended unless there is a bar to this. This is present in the order and called a section 28(1A) bar).

Orders for spousal maintenance can be for a fixed period or for ‘joint lives’. A joint lives order means that maintenance continue until the you remarry or you or your spouse dies.

Calculating Spousal Maintenance

There is no calculation for spousal maintenance as there is for child maintenance through the CMS. The court looks at the overall circumstances of the case. A judge will take in to account many factors when deciding how much maintenance should be paid, and for how long. The court will look at statutory provisions and case law, and a judge has considerable discretion.

The factors in section 25 of the Matrimonial Causes Act 1973 are important. The court’s first consideration is the welfare of any children involved. The court considers:

1. the income and earning capacity of you and your spouse now or in the future
2. the financial needs, obligations and responsibilities that you both have now or  in the foreseeable future
3. the standard of living enjoyed by the family before the breakdown of the marriage
4. your ages and the length of the marriage
5. any physical or mental disability
6. contributions made, or likely in the foreseeable future to be made, to the welfare of the family, including any non-economic contribution
7. conduct, if that conduct is such that it would, in the court’s opinion, be inequitable to disregard it. It is rare for conduct to be taken into account. The reason for the marriage  breakdown is very unlikely to be considered.
8. the value to you of any benefit that either of you will lose the chance of acquiring

Case law in England and Wales also says that the court must consider fairness, compensation for loss of career opportunity and sharing of any wealth above meeting the parties needs.

Urgent Spousal Maintenance

You can apply for spousal maintenance urgently if your spouse has cut you off financially.  Spousal maintenance orders can also be made to meet your legal fees for divorce and financial remedy claims. You can read more about interim maintenance (maintenance pending suit) and maintenance for legal fees.

Child maintenance

Child maintenance is where payments are made by the non-resident parent to the primary carer for the benefit of the child. Calculations and child maintenance decisions are usually made by the CMS (child maintenance service). The court will only step in to make maintenance orders as a ‘top up’, for educational expenses, expenses for a disability or by agreement. You can read our detailed guide to calculating child maintenance.

This article has been prepared by paralegal, Dariya Skerratt, and is intended for guidance only. Contact our lawyers for a consultation for clear and bespoke advice on your own maintenance needs or obligations.

If you’re a foreign national in England or a British expat based abroad and considering divorce through the English Courts, contact us for expert advice.

For more information and advice on child maintenance, you may be interested in:

• child maintenance case study
• our guide to maintenance for unmarried parents