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 1973)
S 27(1) of MCA 1973 allows a spouse to apply to the court for an order on the ground that his/her spouse has failed to provide reasonable maintenance for him/her.
To make an application under this section, one of the parties must be domiciled, resident in England and Wales, or have been habitually resident there for a year before the application.
What factors should the court consider?
S 27(3) 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). These include:
- 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 MCA 1973 is not automatically revoked on divorce, but re-marriage by the recipient spouse revokes a periodic payment order.
Domestic Proceedings and Magistrates’ Court Act 1978 (DPMCA 1978)
An application for spousal maintenance (support) can also be made in the family court under s 2 of DPMCA 1978.
A spouse may apply for an order under this provision if the other party to the marriage has:
- failed to provide reasonable maintenance for the applicant; or
- failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family; or
- behaved in such a way that the applicant cannot reasonably be expected to live with the respondent; or
- deserted the applicant.
The factors the court will take into consideration in making an order pursuant to DPMCA s 2 are almost identical to the grounds given above (s 25) for an order pursuant to MCA 1973.
The orders that can be made are:
- periodic payments for such sum as may be specified;
- a lump sum, 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
Section 6 consent order
If the spouses can come to an agreement regarding maintenance payments, pursuant to s 6 of DPMCA 1978 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’.
Section 7 order
- An order pursuant to s 7 of DPMCA 1978 may be made where the parties have lived apart for more than three months (not including desertion cases) and one spouse has made periodic payments to the other for three months.
- A s 7 order may only order periodic payments at a rate no higher than the aggregate of the payments actually made in the last three months.
- S25 of DPMCA 1978 provides that a s 7 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 where the respondent is not receiving adequate maintenance.