Many financial issues arise on separation, usually because the resources that previously were used to support one household now have to be stretched to support two. What is the law regarding the application for maintenance (support) for a spouse before a divorce has been granted?
Application pursuant to s 27 of the Matrimonial Causes Act 1973 (MCA)
S 27(1) of the MCA provides that a spouse may apply to the court for an order under this section on the ground that his or her spouse has failed to provide reasonable maintenance for him or her.
Note that there is a jurisdictional requirement: in order to make an application under this section of the MCA, one of the parties must be domiciled in England and Wales, or be resident in England and Wales, or have been habitually resident in England and Wales for a year before the application.
What factors should the court consider?
S 27(2) of the MCA provides that where an application is made for spousal support, the court, in deciding whether an order should be made and if so, what type of order, will have regard to all circumstances of the case including the matters mentioned in s 25(2) of the MCA.
What are those matters?
S 25(2) of the MCA provides that in making an order, the court must take into account all relevant circumstances and in particular the following factors:
the income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire
the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
the standard of living enjoyed by the family before the breakdown of the marriage
the age of each party to the marriage and the duration of the marriage
any physical and mental disability of either of the parties to the marriage
the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family
the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it
- in the case of proceedings for divorce or nullity of marriage, the value of each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
For more information on:
- What type of maintenance orders can the court make?
- Is the order automatically revoked on divorce?
- Application in the Magistrates Court pursuant to s2 of the Domestic Proceedings and Magistrates’ Court Act 1978 (DPMCA)
- What are grounds for an order under s 2 of the DPMCA?
- What factors will the court take into consideration in making an order pursuant to DPMCA s2?
- What kind of order can be made?
- Other orders that can be made pursuant to the DPMCA
- S6 consent order
- S7 order