There are two distinct forms of maintenance and different legal principles apply to each.
This is paid by the wealthier party in a divorce. It is intended to help the recipient make ends meet and survive on their own for a defined period of time. In the United States it is referred to as ‘alimony’. Typical recipients might include a stay-at-home parent who is only working part time, or a spouse taking a career break whose skills have fallen out of date, affecting their employability. Such partners are likely to struggle to earn enough to pay their way – at least initially. And that is the function of spousal maintenance – to help them keep their heads above water. Why, after all, should the poorer spouse suffer financially if it was the richer one who choose to end the marriage?
In general, family courts in England and Wales place a great deal of emphasis on ending the financial ties between former couples as soon as possible. Therefore, maintenance awards may come with time stipulations, or statements that the recipient will be expected to establish financial independence within a particular timeframe.
But the courts do not, of course, ignore reality either. An older spouse, perhaps approaching retirement age, may find financial independence – even employment itself – difficult to achieve, and this could be reflected in the timescale of their maintenance award.
Show me the money
Maintenance is only one way in which the family courts to meet the needs of each partner. Under English law a spouse who stays at home to raise the children or be a homemaker has made just as important a contribution to the marriage as the husband or wife who earns the money, and their entitlement to a fair share of the assets is unquestioned.
The family’s wealth can be divided up in different ways, including:
- Payment of a large ‘lump sum’ – perhaps in lieu of periodical maintenance payments.
- Asset allocation (for example, stocks and shares, property, savings accounts).
- Pension sharing.
Such arrangements can form part of a ‘clean break’ settlement, in which particular assets are allocated and payments made in order to permanently end financial ties between the couple.
The balance of approaches will depend on the preferences and circumstances of each couple. If they struggle to reach an agreement, family court judges will draw up a settlement that best needs the needs of each individual.
Can you refuse to pay spousal maintenance/support?
This depends entirely on whether or not the maintenance amount has been endorsed by a court. If it is an entirely informal agreement between you and your ex, then it will not be legally enforceable. But why would you wish to withhold money in that way, especially if you have children?
The picture is a very different one if a court has endorsed the award. Then failure to pay the sums set out in a child arrangements order is contempt of court and subject to penalties, from fines to court summons. But crucially, this is because disobeying any court order constitutes contempt. There is no statutory obligation to pay spousal maintenance: it is an individual arrangement made between each couple. Judges can only endorse and enforce a financial agreement to which the couple have already agreed.
There is, of course, an entirely separate process in place to try and ensure parents financially support their children. As the name suggests, child maintenance – or ‘child support’ – are regular payments paid by an absent parent specifically for the welfare and upkeep of children whose parents have divorced or separated. It is intended to ensure such children do not suffer from material lack if their parents split up. Regular, mandatory payments ensure those children left behind have access to at least basic necessities, and ideally a reasonable quality of life, even if the parent they live with on a day-to-day basis earns a low salary or cannot work at all, and even if a higher earning partner has begun a new family elsewhere.
Can you refuse to pay child maintenance?
In a word: no. Unlike spousal maintenance, the payment of child maintenance by an absent parent is a statutory obligation in itself, regardless of whether or not you there is a legally binding financial order or child arrangements in place. You cannot simply refuse and if you attempt to do so, your salary can be docked at source. The Child Maintenance Service, or CMS, will normally also seek repayment of any previously unpaid maintenance it determines that you owe.
You can dispute amounts the CMS claims you owe, and you can also dispute paternity altogether, but proving the latter claim will require a DNA test. Speak to a lawyer if you find yourself in either situation.