David Milburn, Managing Partner of the Stowe Family Law Harrogate office joins us on the blog today to answer a question that our family lawyers are asked frequently.
I’m a stay at home mum with two young children. My husband is the breadwinner and wants a divorce. How can I possibly support myself and the children moving forward?
This is a particularly common issue and it’s understandable this will cause you anxiety and uncertainty. However, all is not lost as the courts in England and Wales have wide-ranging powers that will ensure that your ongoing needs are met.
The court has the power to order your husband to pay ongoing spousal maintenance in addition to any child maintenance that might be assessed by the Child Maintenance Service. They can also order Interim Spousal Maintenance until a final Order is made.
Spousal maintenance can be ordered to continue for a specific term, e.g. five years, ten years, or for instance until the children have concluded their secondary education.
Alternatively, the courts can, in appropriate cases, order what is effectively an indefinite spousal maintenance order (a joint lives maintenance order) which would only come to an end upon your remarriage, death or a further order of the court.
The court is obliged to consider terminating the financial obligations between you and your husband “as soon after the [divorce] as the court considers just and reasonable”.
The court is, however, likely to order ongoing spousal maintenance if there is a genuine income need. Clearly, in your case, there is likely to be such a need.
It will be necessary to particularise your specific income needs in a detailed schedule. The court will want to ensure that you are maximising your earning capacity. Your care of the children will be a relevant factor to consider here. The court will also consider whether your husband can afford to meet any shortfall between your needs and earning capacity.
It is important to note that spousal maintenance is variable and either party can apply to the court for an upwards or downwards variation, subject to a specific change in circumstances. Furthermore, if your husband were to either have or come into significant capital, the court can capitalise spousal maintenance so that you receive an upfront lump sum payment in lieu of ongoing spousal maintenance.
Back in June 2016, the Family Justice Council published guidance which provided the following principles:
“It is generally right and fair that relationship-generated needs should be met if resources permit.”
“The term ‘reasonable requirements’ is now not approved. The term ‘needs’ (generously interpreted) has gained acceptance.”
“Need will be measured by assessing the standard of living during the relationship – generally the longer the relationship’s duration, the more important this factor will be.”
“A party may be expected to suffer some reduction in standard of living having regard to the overall objective of a transition to independence.”
“The Court will assess the needs of both parties.”
Maintenance can be a complicated issue. The best advice is to get legal advice early so that you can control your case in a thorough and proper way before any financial decisions are made.
Do any of these issues affect you?
If are considering a separation or divorce please do seek legal advice or get in touch here. The best divorce advice is to get legal advice and get it early before any decision making.
David regularly deals with cases involving spousal maintenance often with high-value assets, complex business structures and property elements. You can contact him here.