Should there be maintenance?
Working out what a court will do about the question of maintenance is one of the most difficult tasks for lawyers advising clients in these cases.
It is suggested however, that the following is one way of approaching it:
1. Should there be maintenance at all?
2. If there should, how much should the maintenance be?
3. If there should, how long should the maintenance be for?
The short answer is that the court is supposed to decide these questions by looking at all of the factors in section 25 of The Matrimonial Causes Act 1973. That however, is not very helpful.
In deciding whether there should be maintenance and how much there should be, court is first of all likely to focus on 2 things:
(a) How much money the parties have;
(b) The incomes and outgoings of both parties;
How much property the parties have
If the parties have quite a lot of property then there may be no need for maintenance to be a part of the solution at all. Under the Matrimonial Causes Act the court is supposed to try where possible to reach a solution where there is a “clean break”, i.e. no maintenance. Very often, the Husband will very much want there to be a “clean break”. It may be that he will be prepared to let the Wife have more of the money they have at the moment so that there does not have to be a maintenance order. Maybe the Husband will agree that the Wife should have 55% of the assets or even 70%. The Wife may be happy to agree with this on the basis that she can use some of the extra money she receives to meet her income shortfall.
If on the other hand the parties don’t have enough property for the Husband to “buy out” the Wife’s maintenance claim, then it is likely that there will need to be some maintenance.
Very often there will be a balancing of the money part of the order (the property and the savings) with the maintenance part of the order. It is common for a judge to say: “well if the Wife is going to have more of the assets she can’t expect to have as much maintenance”.
The income and outgoings of both parties
Let’s take a very simple situation. We can imagine a case where the Husband has moved out of the matrimonial home and is living in rented accommodation. The Wife is at home with the children but she does have some money coming in from benefits and some part-time work. Here’s a schedule of income and outgoings for both parties. It is on a monthly basis:
In our example the Wife’s outgoings are higher. This is because the mortgage on the family home is higher than the Husband’s rent on his property. Also the Wife has most of the care of the children.
In a situation like this, it seems likely that some maintenance would need to be paid from Husband to Wife to help Wife meet her income shortfall. Of course there are all sorts of arguments that the parties might run. For example the Husband might be saying that the family home is larger than the Wife and the children need and that it should be sold. The Wife could then move into a smaller property, her income need would be less and so the maintenance could be less. He might also argue that the Wife could earn more.