The subject of maintenance can often be an emotive one and it is frequently a cause of ongoing friction between the parties. Men can resent paying and women can feel that it deprives them of a sense of independence. The question of maintenance is often inextricably linked with the division of the rest of the family finances, such as the family home and any savings or investments.
In the case of an emergency where the husband leaves a wife who has little or no income of her own, it can be appropriate to consider applying to the court for a maintenance order in the short term to provide some income until everything else is resolved in the long run. However, whether a court orders one spouse (usually the husband) to pay maintenance to the other depends upon the consideration of a variety of factors known as the Section 25 Checklist. The starting point is always the respective incomes and outgoings of the spouses. Remember that it is the difficult task of the solicitors advising the parties (or the Court if an agreement cannot be reached) to create two households from the finances of one. A reasonable and fair division is required. A second major consideration is the duration of the marriage and the longer the marriage generally the more likely it will be that the Court will order maintenance if the spouse claiming maintenance has no earning capacity of her own.
Maintenance can often be used in negotiations as a bargaining tool; one spouse may be prepared to forego a maintenance claim in return for a larger share of the family capital or family home. A frequent practice is for the court order “nominal maintenance” usually by agreement. Such maintenance, of 5p per year, is not expected to be paid, but its usefulness is to act as a gateway to an application for increased maintenance in the future if appropriate. Maintenance payments ceases automatically on the re-marriage of the recipient, but not upon the recipient starting a new relationship or living with another person, though such factors can be used to seek a reduction in the rate of payment in appropriate cases.
We have discussed above maintenance for a spouse. A separate topic is maintenance for the children. A divorce court can deal with maintenance for school fees payments, step-children and children with disabilities, but otherwise, it has been many years since the divorce courts dealt with maintenance for children. The Child Support Agency’s remit is to pursue the natural fathers of children for maintenance. The based upon 15% of “the absent parents” net income for the first child, 20% for the second and then 25% for the third with discounting built in for other children dependant financially upon the payer. The minimum rate of payment is £5 per week. No account is taken off the income of the new partner or parent with day to day care (known as “residence”) of the children. Payments continue until the child’s 17 th birthday or 19 th birthday if the child is in full time education.