When dealing with finances within a divorce, dissolution of a civil partnership or a permanent separation, one of the most contentious areas often involves whether there is an obligation on one person in a marriage or civil partnership to pay maintenance to the other. It is something that is likely to cause the paying party a degree of bitterness if they have to hand over a significant proportion of their hard-earned income. The receiving party, on the other hand, often requires it out of necessity to maintain a reasonable standard of living.
In trying to establish whether there is a spousal maintenance obligation, it is essential that all of the circumstances of the case are looked at with all of the finances being taken into consideration. No two cases are ever the same and where maintenance has been granted in one particular matter, it does not necessarily mean it will apply to another, regardless of how similar the facts may be. There is a requirement in all family proceedings, which involve finances, for both parties to disclose details of their respective finances as fully as possible. Only once this disclosure has taken place will it be possible to consider whether maintenance is appropriate.
An initial step will be to identify what the parties’ needs are as the level of maintenance is often largely dependent on this. Within the disclosure stage, the parties will state what they believe their future outgoings will be, which in turn are likely to be scrutinised by the other party. The receiving party is likely to overestimate their future needs, with the paying party naturally seeking to do the opposite.
Perhaps even more naturally, the paying party is likely to challenge the receiving party’s current employment status, either by suggesting an unemployed party can obtain work and therefore meet a larger proportion of his/her future needs, or if currently in employment, can secure a better paid job.
The receiving party may argue that it was agreed that they would raise a family and maintain the family home. This would have allowed the paying party the opportunity to progress their career and increase the level of income to the current level. The receiving party will argue they are now disadvantaged by this, and where relevant this ‘relationship generated disadvantage’ may be a significant factor.
If these arguments are to ultimately be determined at Court, current case law suggests that the receiving spouse’s needs will be generously interpreted. The Court will endeavour to carry out a careful balancing act when establishing what, if any, liability there is. It is also worth noting that the Court has a duty at all times to consider whether a ‘clean break’ is appropriate and this can often affect for how long the maintenance obligation will last.
Our Family Law Team are experienced and skilled in arguing both for and against a requirement to pay maintenance, placing them in the best possible position to advise on the likely success of any claim.
If you would like any further information regarding the information contained in this article please contact Neil NcNab on 01245 228132 or email mcnabn@gepp.co.uk
The above is not legal advice; it is intended to provide general interest about current legal issues.
