MAINTENANCE FOR A SPOUSE

Introduction
How can I get aliment?
How long does the obligation to pay aliment continue?
Is maintenance payable after divorce?
Can we agree the amount of periodical allowance?
How is periodical allowance calculated?
What if my circumstances change?
What if the maintenance is not paid?

Introduction

Spouses have a mutual obligation of financial support. After they have separated, but before they are divorced, this is known as aliment. Maintenance may also be payable after divorce, in which case it is called periodical allowance.

Click here for information about obligations between cohabiting and same sex couples.

How can I get aliment?

You can agree a figure with your spouse and put it into a written agreement – see Separation. If the agreement is registered, the obligation has the same effect as a court order, and can be enforced if the maintenance is not paid (see below).

If you can’t agree on an amount, the one seeking aliment will have to go to court. This means making an application to the sheriff court for the area where either you or your spouse lives. The court does not apply any particular formula to calculate the maintenance payable. It will take into account all the circumstances, including your and your spouse’s needs and resources. It normally makes an order for payment of a specific weekly or monthly amount. It can make an interim award at an early stage in the case on the basis of limited information. If the court makes an interim award, this will apply until the court makes a final decision on the amount of aliment which has to be paid.

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How long does the obligation to pay aliment continue?

The obligation to pay aliment continues for so long as you remain married. As either of you will be able to apply to the court for a divorce after you have been separated for five years, allowing for the time that the divorce action will take, the obligation is unlikely to extend for much more than six years.

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Is maintenance payable after divorce?

The obligation to pay aliment comes to an end when you get divorced. If either spouse thinks that they need continuing financial support beyond the divorce, he or she will have to make an application to the court for a periodical allowance. This has to be justified on one or more of the following three principles:-

• Any economic burden of caring, after divorce, for a child of the marriage under the age of sixteen years should be shared fairly between the parents.

• A spouse who has been dependent to a substantial degree on the financial support of the other should be awarded such maintenance as is reasonable to enable him/her to adjust, over a period of not more than three years from the date of decree of divorce, to the loss of that support on divorce.

• A spouse who, at the time of the divorce, seems likely to suffer serious financial hardship as a result of the divorce shall be awarded such financial provision as is reasonable to relieve him / her of hardship over a reasonable period.

The most common principle used to justify periodical allowance is number 2. It is important to note that the three year period referred to is a maximum, not a fixed period. In determining whether or not there should be an award of periodical allowance, and if so, for how long it should last, the court will take into account the age, qualifications and work history of the claimant, how long she has been maintained by the other spouse since the separation, the steps that she has taken in that period to obtain employment or qualifications necessary to obtain employment, and her future prospects of obtaining employment.  The other two principles can be used to justify periodical allowance for more than three years. 

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Can we agree the amount of periodical allowance?

Yes, in exactly the same way as you can agree aliment – see above.

How is periodical allowance calculated?

As with aliment, there are no hard and fast rules, and generally the same principles will be applied. Account will be taken of any capital settlement arising on the divorce, whether it is by agreement or by order of the court, and a substantial capital settlement can sometimes result in no periodical allowance being awarded.

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What if my circumstances change?

Whether you are the payer or the payee, any material change in your circumstances can justify you seeking a variation, or even a discharge of the obligation to make the payment. A loss of job, or retirement, would be common examples of situations where the reduction in the amount payable might be justified.  If you cannot agree a different figure with your former spouse, you will have to go to court if you want to vary either the terms of a written agreement or an existing court order.

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What if the maintenance is not paid?

You can enforce payment of both aliment and periodical allowance in exactly the same way regardless of whether the obligation is set out in a registered agreement or in a court order. You do not have to go to court. We will be able to take enforcement action for you. We will discuss with you the best way of recovering any arrears. If the payer is in employment, this is usually by way of an attachment of earnings (known as an “arrestment”).

The legal information contained in this site is not comprehensive, nor should it be treated as a substitute for specific legal advice on any individual situation.

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