The ongoing cost of living is making life challenging for many of us. As such, we often receive enquiries from people reliant on spousal maintenance or child maintenance from an ex-partner seeking an increase, or from those making maintenance payments seeking a reduction or to stop it altogether if either party’s personal circumstances have changed.
Our Divorce & Family Law solicitors explain the difference between spousal maintenance and child maintenance, and the issues around varying or stopping them.
Spousal maintenance and child maintenance explained
When a relationship ends, ongoing financial support is often one of the most worrying and emotionally charged issues. Many people are unsure what they are entitled to receive, what they are required to pay, and whether those arrangements can change over time as circumstances shift.
Although the terms are sometimes used interchangeably, spousal maintenance and child maintenance are legally distinct, and understanding the difference is essential when considering whether payments can be reduced, increased or brought to an end.
The difference between Spousal Maintenance and Child Maintenance
Spousal maintenance is not the same as child maintenance. Child maintenance is obligatory, whereas spousal maintenance is discretionary.
When couples get divorced or dissolve a civil partnership, if they have been through financial remedy proceedings, a Court may make an Order for spousal maintenance. Spousal maintenance arises where one party’s income or assets are insufficient to meet their day-to-day needs, e.g., they have a much lower income than the other or have not worked for some or all of the relationship period.
Spousal maintenance is usually paid monthly and continues either for a defined period of years or, occasionally, for the remainder of the parties’ lives, known as a “joint lives order”. The question of how much spousal maintenance should be paid and for how long will vary from case to case, although the Court’s starting point is to try to achieve a clean break whenever possible.
How is child maintenance calculated
Child maintenance, on the other hand, has a prescribed formula to determine how much is payable using the Child Maintenance Service (“CMS”) calculator, which considers several factors, including the paying parent’s income, the number of children living with the paying parent, how many children are involved, and how often the children spend overnight with the paying parent. The CMS calculation is often a useful starting point for parties during negotiations, and many separating couples agree on payments at that level, without any further input from the Court or the CMS.
Both spousal maintenance and child maintenance could be payable at the same time and are sometimes referred to collectively as “global maintenance”.
Varying Spousal Maintenance
In the case of varying spousal maintenance, if there is a dispute between the parties about the amount to be paid, a solicitor can help with negotiations, which may resolve matters; failing that, an application can be made to vary the Court order.
When can spousal maintenance be varied?
A variation may be considered where there has been a material change in circumstances, such as:
- A reduction or increase in income
- Job loss, retirement or a change in working hours
- Illness or disability affecting earning capacity
- Increased living costs or changes in housing needs
The court will focus on what has changed since the original order, rather than re-examining the divorce settlement as a whole.
The Matrimonial Causes Act 1973 enables the Court to vary upward or downward the amount payable under a spousal maintenance order or extend the length of time for which maintenance is payable (unless this has been specifically barred under s28(1A)). Many long-term spousal maintenance orders will make provision for the amount of maintenance to increase year-on-year on a variation date.
To try and avoid disagreement over the amount, orders often provide an automated system of increases linked to the widely used Consumer Price Index or the Retail Price Index and are said to be “index-linked.” This will only occur if an inflationary provision was made in the Court order, which cannot be applied retrospectively.
Index-linked maintenance and inflation
However, as we all know, wage increases don’t necessarily mirror cost-of-living increases, so the person paying the maintenance might say that they cannot afford such an increase if their income has not grown accordingly. Similarly, a receiving party can apply to the Court to increase spousal maintenance if they find they cannot make ends meet and believe the paying party can afford to pay more. The Court may well be reluctant to order an increase in spousal maintenance, save in the most exceptional circumstances.
As part of the variation process, the parties will be required to provide details of the change of circumstances and their current financial situations in a Form E2. After consideration of all circumstances of the case, the Court will assess if any variation should be made and, if so, from which date the variation should take effect.
Can Spousal Maintenance be stopped?
There are certain ‘trigger events’ that can cause spousal maintenance to automatically cease, such as:
- Where the maintenance was ordered for a fixed term and that term expires
- If the recipient remarries, which brings spousal maintenance to an automatic end
The paying party can also apply to the Court for spousal maintenance to be reduced if there has been a change of circumstances (for either party), which means maintenance is no longer necessary or possible. If the material change is significant, the Court may order termination of the payments, thereby bringing the spousal maintenance to an end once and for all.
Any paying party must note that they cannot simply stop paying spousal maintenance, even if they can no longer afford it, as they would be in breach of a Court order and can be penalised accordingly. If circumstances have changed and the paying party cannot afford to pay spousal maintenance, they should make an application to the Court for variation as soon as possible. A recipient will not lose their right to receive maintenance solely because they cohabit with someone else, although receiving two incomes into one household may affect whether spousal maintenance is still needed.
Can the court bring maintenance to an end early?
A judge retains the discretion to terminate payments if the paying party can justify that this is fair in the circumstances. The Court will also consider the appropriateness of implementing a clean break, which would not cause undue financial hardship to the payee.
The Court can also contemplate whether there should be a capitalisation of spousal maintenance, and this is another option each party should think about. Capitalisation is the process of consolidating spousal maintenance payments into a single lump-sum payment, which may have positive or negative effects for the payer and the payee, depending on their individual circumstances.
Varying Child Maintenance
In the case of Child Maintenance, either the party making or the one receiving child maintenance can refer the matter to the CMS for a reassessment if they think that the amount should change in light of any changes in the paying parent’s income. If the level of child maintenance is included in the financial order, the parties cannot seek an assessment from the CMS until 12 months after the date of the order, and the amount specified in the order must be paid.
How can child maintenance be changed?
The CMS will carry out an annual review, which will assess the paying parent’s income, benefits, and circumstances to ensure that the right amount of child maintenance is paid for the next 12 months once an application has been made to them.
A reassessment may be appropriate where there has been:
- An increase or decrease in the paying parent’s income
- A change in employment or self-employment earnings
- A change in the number of children supported
- A change in how often the children stay overnight with the paying parent
When does child maintenance stop?
Child maintenance generally continues for as long as a child remains financially dependent. This often means payments stop when a child reaches 18, but they may continue beyond that point if the child is still in full-time education or training.
Because child maintenance is linked to dependency rather than relationship status, it does not end on remarriage or cohabitation of either parent.
How we can help
If you have a spousal maintenance order, whether you are the recipient or the payer, it may be worth checking the terms of the order for a variation clause.
It’s worth seeking professional advice, as an application variation could result in an adverse decision if the financial positions are not assessed correctly.
Our approach
We can help you by:
- Reviewing the terms of your existing court order, including any variation or index-linking provisions
- Advising whether a change in circumstances is likely to justify a variation application
- Supporting negotiations to try to reach an agreement without the need for court proceedings
- Applying for or defending applications to vary spousal maintenance
- Advising on child maintenance where the CMS is involved or may become involved
Because variation applications can result in an outcome that is less favourable than expected, it is important to take advice before starting the process.
Speak to a specialist
At THP Solicitors, we have specialist divorce solicitors with experience in both applying for and defending applications to vary spousal maintenance. We have helped many clients resolve these issues in a measured and practical way and can advise you based on the specific facts of your case.
To speak to one of our family law solicitors, please contact:
- Julia Drury on 0118 975 6622 (Lower Earley office)
- Richard Rodway on 01491 570 900 (Henley-on-Thames office)
You can also email us confidentially at office@thpsolicitors.co.uk.
Frequently asked questions about spousal and child maintenance
What is spousal maintenance?
Spousal maintenance is a court-ordered payment made by one former spouse or civil partner to the other following divorce or dissolution. It is designed to help meet reasonable day-to-day needs where one party cannot support themselves and the other has the means to contribute. It is not automatic and is assessed on a case-by-case basis by the court.
Who is entitled to spousal maintenance in the UK?
There is no automatic entitlement to spousal maintenance in the UK. The court will consider factors such as income, earning capacity, age, health, and the standard of living during the relationship. Spousal maintenance is usually only ordered where one party cannot reasonably meet their needs without support.
How long does spousal maintenance last?
Spousal maintenance may be ordered for a fixed period or, in less common cases, on a joint lives basis. The court’s starting point is usually to achieve a clean break where possible, meaning maintenance is not intended to continue indefinitely unless circumstances require it. Maintenance orders can sometimes be varied or brought to an end if circumstances change.
Does spousal maintenance stop if you cohabit?
Spousal maintenance does not automatically stop if the receiving party cohabits with a new partner. However, the court may take cohabitation into account if it affects the recipient’s financial needs or household income. Each case will depend on the specific circumstances.
Does spousal maintenance end on remarriage?
Yes. Spousal maintenance automatically comes to an end if the person receiving it remarries. This applies regardless of the financial circumstances of either party and does not require a further court order.
When does child maintenance stop?
Child maintenance usually continues until a child reaches 18 or finishes full-time secondary education. In some cases, payments may continue beyond 18 if the child remains financially dependent, for example while completing education or training.
How is child maintenance calculated?
Child maintenance is usually calculated using the Child Maintenance Service formula. This takes into account the paying parent’s income, the number of children, and how often the children stay overnight with the paying parent. The calculation provides a standardised approach to ensure consistency.
Can child maintenance be backdated?
Child maintenance is usually payable from the date an application is made to the Child Maintenance Service. It is not normally backdated to cover earlier periods, which is why timing can be important if circumstances change.