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.
What type of maintenance orders can the court make?
The court can make an order for periodic payments and/or a lump sum payment.
Is the order automatically revoked on divorce?
An order made pursuant to s 27 of the MCA is not automatically revoked on divorce, but re-marriage by the recipient spouse revokes a periodic payment order.
Application in the Magistrates Court pursuant to s2 of the Domestic Proceedings and Magistrates’ Court Act 1978 (DPMCA)
An application for spousal maintenance (support) can also be made pursuant to s 2 of the DPMCA.
What are grounds for an order under s 2 of the DPMCA?
A spouse may apply for an order under this provision on the grounds contained in s1 of the MCA, namely that the other spouse has failed to provide reasonable maintenance for the applicant, or that the respondent spouse has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent, or that the respondent spouse has deserted the applicant.
Note that an order under s2 of the DPMCA can be made even if the parties are still living together. However, if they continue to live together, or reconcile and then cohabit for 6 months, any final order ceases to have effect.
What factors will the court take into consideration in making an order pursuant to DPMCA s2?
Space does not allow a full description of the grounds, listed in s3(2) of the DPMCA, but they are almost identical to the grounds given above (s25) for an order pursuant to the MCA.
What kind of order can be made?
The orders that can be made are:
Periodic payments for such sum as may be specified
A lump sum not exceeding £1000, which the court may order to be paid by the respondent in periodic payments. The court may also defer the lump sum payment.
Other orders that can be made pursuant to the DPMCA
S6 consent order
If the spouses are able to come to an agreement regarding maintenance payments, pursuant to s 6 of the DPMCA the court can make a consent order on the basis that the parties have agreed to maintenance payments and the arrangement is “not contrary to justice”. In such a case there is no £1000 limit on lump sum payments.
An order pursuant to s 7 of the DPMCA may be made where the parties have lived apart for more than 3 months (not including desertion cases) and one spouse has made periodic payments to the other for 3 months.
A s7 order may only order periodic payments at a rate no higher than the aggregate of the payments actually made in the last 3 months.
S25 of the DPMCA provides that a s7 order ceases to have effect when the parties resume living together.
If the court thinks its powers under s7 are insufficient it can treat the application as one under s 2 because the respondent is not receiving adequate maintenance.