Child Support
This arises where one or both parties to a marriage are working and they bear a liability either to the other party of the marriage or each other to maintain a child/children of the marriage. Child support is almost the exclusive preserve of the Child Support Agency which will assess the amount of child support payable in the circumstances.
Spousal Maintenance
Spousal maintenance is not an automatic right and only arises where one party to the marriage bears a liability to maintain the other. To avoid court action both parties are required to make a genuine effort to resolve their differences. These pre-action procedures specifically apply to financial cases (property settlement and maintenance). Parties are expected to avail themselves of appropriate means unless there are good reasons for not doing so. Some of these reasons are urgency, family violence, fraud, an intractable dispute, undue prejudice or time expiring. Where a case is subsequently started the court may consider whether the requirements have been met and, if not, what consequences there should be if any.
People need money to live and where their circumstances change following a marriage breakdown they are entitled to apply to the court for appropriate orders where they are cut off from support by the other party and they have tried to comply with the courts pre-action procedures or where this has been rendered impossible due to particular circumstances. The court may make any order for spousal maintenance which it considers proper. It can make an order for periodic maintenance or for a lump sum. Of course this may be agreed between the parties prior to separation, following separation or when an application for final orders is made.
The court considers a number of matters when determining whether it is appropriate to make a maintenance order. The court takes into account the need of the applicant and the ability of the other to provide support. The test is one of reasonableness to support and only where the other party is unable to support themself adequately due to:
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having the care and control of a child under 18
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age, physical or mental incapacity for appropriate employment
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for any other adequate reason as set out in the Family Law Act
When the courts consider capacity to pay they look at affordability and comparative living standards both pre and post separation. Orders can be applied for at any time up till the time that final orders are made and they may be varied as necessary. Maintenance must be applied for within 12 months of a divorce becoming final. To do differently is unwise, misinformed, expensive and difficult as the court has to be convinced that special circumstances apply in the applicant's case.
It is normal with spousal maintenance for this to be included by many people as part of their property settlement. Spousal maintenance is only available to married partners. No one can afford to embark on a course of action in this regard unless you obtain informed legal advice to assist you with the process.
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