Maintenance Claims – Child Maintenance and Spousal Maintenance

If you separate, you can claim maintenance for children living with you whether you were married or not, but you can only claim maintenance for yourself if you were married or in a civil partnership. Maintenance is also known as periodical payments.

Child maintenance

Most child maintenance claims (also known as child support) are dealt with by the Child Maintenance Service (CMS) or by agreement, using the CMS guidelines, which include:

• child maintenance is assessed on a percentage of the non-resident parent’s income before tax and National Insurance, depending on the number of children they have to support
• there is a reduction of 1/7 for each night per week, averaged over a year, that the child or children stay with the paying parent, and
• there is a reduction if the paying parent has any other children in their own household or if they are paying child maintenance to more than one other parent

The Court can only make child maintenance orders in limited circumstances including;

• where the non-resident parent earns more than the level specified by the CMS, the Court can make a top-up order
• to meet a child’s special needs attributable to a disability or
• for the payment of certain education or training costs or
• where a parent or the child is resident abroad.

Spousal maintenance

This is a regular payment from one party to the marriage or civil partnership to the other, and any Order for spousal maintenance will form part of the financial remedy Order on divorce or dissolution of civil partnership.

There is no set formula for deciding how much spousal maintenance is to be paid. In broad terms, periodical payments are calculated by balancing the income/earning capacity of the parties against their reasonable needs.

An Order for periodical payments must end when the person receiving the payment remarries or forms a subsequent civil partnership, or when either of you dies.

Where possible, you should look to achieve a clean break. This is a settlement where there is no spousal maintenance or where spousal maintenance ends at a set point in the foreseeable future (known as a deferred clean break). Sometimes, this is achieved through capitalised maintenance, i.e., the payee receiving more capital from the settlement instead of maintenance.

Nominal periodical payments orders

These are Court Orders for a nominal amount to be paid to the other party, such as £1 per annum. The purpose of nominal orders is that the sum can be varied upward if there is a change in circumstances. 

Variation

At any time within the duration of a periodical payments Order, either of you may apply for the amount or period for which maintenance is payable to be varied. This can be up, down or capitalised maintenance.

Maintenance pending suit or interim periodical payments Orders

If you are left with insufficient financial support during your divorce, the Court may order your ex-spouse to pay a maintenance pending suit (interim maintenance) to you until the case is concluded, to meet your immediate and interim needs.

Legal Services Orders

The Court can make Orders for one party to a divorce to pay the other’s legal costs. You would need to prove to the court that, without the payment, you would not reasonably be able to obtain legal funding for the proceedings elsewhere.