Spousal/civil partner periodical payments - overviewGeneral principles

Upon an application for financial provision the court may order a party to a marriage or civil partnership to make periodical payments to the other party.

Nominal periodical payments orders

The court may order a party to make periodical payments to the other party on a nominal basis. Typically, this may be five pence per year. The purpose is (obviously) not that the sum itself is relevant, but that an order exists which is capable of being varied upward in the event of a change in circumstances that give rise to a need for a financial claim at later date.

There is no fixed, mathematical rule to quantify the appropriate sum of periodical payments. The High Court has stated obiter that quantification is 'more an art than a science'. The only guide is that an award of periodical payments should, in conjunction with the other orders available, produce fairness. The principles in the Matrimonial Causes Act 1973, s 25 apply.

Accordingly, an order for periodical payments cannot simply confine a party to their needs. It may be that periodical payments are necessary to allow a party to build up capital, to reduce future dependence on the other.

Duration of order

An order for periodical payments cannot survive:

Apart from these qualifications, there is no specific limit on such orders. However, the circumstances of the case may demand that a term order is made, ie the periodical payments are to be made for a defined period of time rather than on an open-ended basis.

Clean break considerations

The court must consider whether it should exercise its powers so that the financial obligations of each party towards the other will be terminated. This test will be determined in all the circumstances, paying attention to the effect of the breakdown of the marriage.

Maintenance pending suit

Periodical payments ordered before the determination of the suit, to cover the interim position, are called maintenance pending suit.

The court may only order a party to pay maintenance pending suit to the other until the suit is determined. If the financial provision application is proceeding at that stage, interim periodical payments may also be ordered until that is completed. A combined order with provision for periodical payments after decree absolute will avoid multiplicity of applications. The court will concentrate on a party’s immediate and interim needs alone.

This can include an allowance to enable the applicant to meet their legal costs in litigating their case. If such a sum is sought, it should be specifically pleaded. The test is whether an applicant can demonstrate that they cannot reasonably procure legal advice and representation by any other means. This includes consideration of: the possibility of using capital to pay costs; a Sears Tooth charge; and the availability of public funding. But there is no definite rule that if any of those three sources can be used, they must be. The test is whether it would be reasonable to expect the applicant to do so.

Procedure on application for maintenance pending suit

A party may apply for maintenance pending suit at any time on or after the presentation of a petition for divorce, dissolution of civil partnership, nullity, judicial separation or a civil partnership separation order.

Regard must be had to the pre-action protocol set out in the Family Procedure Rules 2010 prior to issuing proceedings after 6 April 2011. The applicant files a notice of application (for applications issued prior to 6 April 2011) or a Part 18 application notice (for applications issued on or after 6 April 2011) and the court must fix the application for a hearing not less than 14 days after the application is issued, unless time has been abridged by the court. The application must be accompanied by a sworn statement explaining why the order is necessary and setting out details as to the applicant's means, together with a draft of the order that they are inviting the court to make. If a Form E/E1 has already been sworn, that may suffice as evidence of means, although in some courts a short statement in support of the application is also required. The respondent should file a sworn statement setting out information as to their means not less than seven days before the hearing (unless they have already sworn their Form E/E1).

Impact of remarriage or civil partnership upon ability to apply for periodical payments

A party who has remarried or entered into a subsequent civil partnership cannot apply for spousal periodical payments, by operation of statute.

Impact of remarriage or civil partnership on periodical payments order

A spousal periodical payments order will immediately be brought to an end by the payee’s remarriage or subsequent civil partnership, by operation of statute.

Impact of cohabitation on periodical payments order

A spousal periodical payments order will not immediately be brought to an end by the payee’s cohabitation with another party. Notwithstanding this:

Terms of orders

The court may order a party to make periodical payments over any fixed period: it may be weekly, monthly or annually. Payments can be made in arrears, in advance or simply during the term. If appropriate, payments can be increased annually in line with the Retail Prices Index.

Secured periodical payments orders

The court has jurisdiction to secure periodical payments for such term as may be specified. This means a sum will be secured by the payer to provide a fund for the payee. Term and quantum are decided on the same basis as unsecured periodical payments.

An order for secured periodical payments is highly unusual. Such an order is only likely to be made where the court doubted a payer’s willingness to submit to an unsecured order, where there was no possibility of a capital sum being paid in lieu. It may be appropriate where eg the reliability of the payer is in doubt and he or she is moving outside the jurisdiction.

Methods of payment

The Maintenance Enforcement Act 1991 gives the court jurisdiction to order a party to make payments by standing order (and some alternative means of payment).

Variation

At any time within the duration of a periodical payments order, a party may apply for its variation. This applies to quantum and term. Section 31(7B) of the Matrimonial Causes Act 1973 provides that the court can make orders of a capital nature on such an application.

The court has jurisdiction to provide a deferred clean break by specifically precluding a party’s ability to apply for an extension of the term. This must be clearly stated on the face of the order. A term order implies that a payer should have confidence that their obligations are to terminate at a definite point.

When considering variation of quantum, the court considers the matter afresh, in light of all the circumstances, new and old. It is not necessarily restricted by the intentions of the substantive order (although the intentions of the court, and any capital distribution, will naturally be of considerable evidential weight). Again, the court’s task is to produce fairness.

Relevant factors have included: financial mismanagement or misconduct by a party; the accumulation of capital by a party through thrift; a party’s new cohabitation; and a party’s new-found wealth. This list is illustrative, not exhaustive: the court has a free hand.

Procedure

A variation application is an application for ancillary relief (a financial order). Therefore, the procedure for substantive and variation applications is the same.