Spousal maintenance

You can apply for spousal maintenance when you are divorcing your partner (or dissolving your civil partnership) and feel that you will not be able to manage financially, either because your standard of living will change drastically, or you will be put at a financial disadvantage. This may be due to your decision to forego a career to support your family and you now need time to develop your skills or to help you continue the standard of living you had prior to divorce or dissolution.

In Scotland, ongoing periodical allowances are rarely paid when a couple divorces or dissolves a civil partnership, as the courts normally impose a clean break principle. However, on some occasions periodical allowances may be awarded by the courts, where there are insufficient assets to be divided between both parties or the assets are inadequate to meet your needs.

There is no set formula for the calculation of spousal maintenance as there is for child maintenance. The payment has to be affordable for the paying party plus the needs of the payee have to be genuine.

The amount you receive would depend on many factors, including:

• how much you need to live on

• how much income you already have

• how much you could potentially earn in the future

• the assets that belong to the party making the payment as well as the way in which you lived during the marriage

• how many children you have and their welfare

If the marriage or civil partnership is short (typically less than 5 years), the courts will normally impose a term order (ie a period for which spousal maintenance is paid). However, if the couple has been together for a long time or if the court feels that the payee is unlikely to become financially independent, a joint lives order may be imposed. This requires payment to be made for the rest of the payee’s life. In granting a joint lives order, the court will consider all of the relevant factors mentioned above to see if the person receiving the payment can move closer to becoming financially independent at all.

In Scotland, the courts will normally make a periodical allowance for a specific time, usually with a maximum duration of 3 years. In exceptional circumstances, the courts may award a periodical allowance for an extended period. These circumstances include:

• the individual receiving the periodical allowance not having worked throughout the course of the marriage and would thus struggle to find employment. The other individual must be in good employment for this to be awarded.

• the individual receiving the periodical allowance suffering from an illness or disability resulting in them experiencing severe financial hardship without the payments. In this case, payments may be awarded until they remarry, enter into a civil partnership, or die.

In some circumstances, a lump sum can be paid instead of a continual maintenance payment. This helps to encourage a clean break, severing all financial ties between the parties.

In Scotland, lump sum payments are often used to divide the assets of the marriage equally.

The person making payments can apply to the court to have the amount adjusted, based on a change of circumstances, such as changes in income or the wealth of the party receiving the spousal maintenance. For instance, the person receiving maintenance payments could have secured a new job leading them to become more financially independent. The court may decide to reduce the payment in order to reflect the change. It may also be reduced when the paying party can no longer make the payments (eg because they lost their job).

The court has also the power to do the opposite, ie increase the amount of payment when the paying party is no longer capable of making the payment (eg because they lost their job).

Spousal maintenance and periodical allowances usually stop when:

• you or your ex-partner die

• the payment term ends

• the person receiving spousal maintenance remarries or enters into another civil partnership

• the court provides an order to stop the payments

You can apply directly to the court for spousal maintenance. If you feel you may be eligible for spousal maintenance, Ask a lawyer for more details about applying and the costs involved.