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SPOUSAL MAINTENANCE - NOMINAL OR SUBSTANTIVE?(30 Posts)
Hi Legal Peeps.
My husband and I are currently going through mediation. At the moment, he is being very agreeable and is paying me more than required by the CSA for maintenance.
The solicitor dealing with our mediation said that the additional amount is known as spousal maintenance.
She then asked if this should be put down as nominal spousal maintenance, or substantive (I think that's the word she used). I asked what the difference was and although she attempted to explain, I felt none the wiser!!!
Can someone please explain the difference please.
Many thanks, Allycat
Nominal spouse maintenance is for a small amount, say 5p/year, which in reality isn't paid. IT leaves the way open for the recipient to apply for a variation later so the nominal amount can be increased and actually paid.
A substantive order would impose a duty on the payer to pay a real amount specified
That's the general gist, although I'm not sure if I've explained it well.
I do hope your ex is getting legal advice, the mediator is potentially creating a huge liability for him in the future. It wouldn't be what I'd call impartial, but he can possibly sue for damages if she writes her advice down.
Did you pick the mediator. (It's good for you though).
Basically, although I started the conversation, it was mutual decision that our marriage was over as we had been living almost separate lives for many years.
It was agreed that I should stay in the house with our 2ds and in order for me to afford this, he agreed to pay me an amount each month.
Once we started mediation, he looked into what the CSA says that he has to pay and it turns out he is paying me £100 or so above this amount.
So not too far adrift but falls into the spousal maintenance all the same.
He has agreed to continue paying me the higher amount as he is a nice guy and doesn't want to see the kids go without. I also need it to borrow against to buy him out of the house.
I do wonder if it will change when he buys himself somewhere or meets somebody new.
He has made it clear though that should his salary circumstances change, the amount will be adjusted accordingly.
It doesn't matter if its above what the CSA say, it can still be classed (and usually is) as CM, not SM.
Very few courts now award SM, I'm frankly amazed that a solicitor would make this kind of error, it doesn't bode well for any other info she comes out with.
Although an order spouse maintenance isn't imposed by courts that often it is more usual for divorcing spouses to agree spouse maintenance. In fact when there are children it isn't uncommon for judges to insist before signing off an agreement (Consent Order) that there is at least a nominal amount of spouse maintenance as insurance the family doesn't suffer undue hardship e.g. when the parent with the majority of care cannot work because of redundancy or ill health.
With regard to suing once mediation has finished spouses are advised to seek their own independent legal advice about the drafting of the agreement into a consent order.
Spouse maintenance doesn't necessarily have to be a huge liability and paying it may be a better option if it means an overall agreement that works for everyone can be reached. When no agreement is reached going to court tends to inflame the situation, the legal costs aren't insignificant, it's less likely either spouses will be satisfied with a court ruling or adhere to one and it damages long term family relationships more than necessary. That makes parenting together more difficult, which in turn has a negative impact on children.
And even with spousal maintenance if there is a decrease in his income he can apply to have the amount reduced. It's also usual for the order to be worded do that in the event of you cohabiting for a reasonable period of time or remarrying then it would stop.
Is it still the case that after 12 months the husband could give notice and ask the CSA to deal with CM?
Just curious too OP. What's going to happen to the house when the children grow up?
CM could terminate after 12 months by either of you going to the CMS (Child Maintenance Service).
Perhaps MuttonCadet has read something about about the Law Commission's report where it was said spouse maintenance wasn't awarded in the vast majority of cases. If anyone is interested to put that in some sort of context according to recent research data from Cardiff University 12.5% of the final financial orders in the study made provision for spouse maintenance, but only "appeared designed to provide a substantive income potentially for life" in less than 2% of the total sample.
Thank you everyone for your input.
As the amount we are talking about is £100 a month it doesn't really make much difference to me in the grand scheme of things.
I will, however, make sure that nominal spousal maintenance is agreed in case of my ill health (I am type 1 diabetic, so you never know) or redundancy.
The professionalism and knowledge of the Solicitor and Mediation Centre as a whole has already been questioned by myself and my ex. We have paid £740 for two mediation sessions and when the mediation centre has emailed us our outcome statement, both have been wrong!!! We would definitely not recommend them!!!
Another question, due to wanting to be considerate to my ex and taking things one step at a time for the children's sake, I have not begun divorce proceedings. We separated in August 2013. Should I be looking into this?
If a nominal SM order is made, does it work both ways? In other words, would the OP be liable to pay SM if her/exH circumstances changed?
Collaborate's point is important. If your husband agrees to pay child maintenance in excess of the Child Maintenance Service rates after 12 months either party can apply to the CMS and the consent order would cease to have any effect with regard to child maintenance. So you would lose the £100 paid over and above the CMS rate.
On the other hand if your husband pays child maintenance at the CMS level and £100 spouse maintenance the SM payments would continue even if your husband applied for a CMS assessment. Also the order for spouse maintenance could be varied later if you hit hard times as long as your husband has enough disposable income.
babybarrister, Can't remember from the top of my head whether the Law Commission report specifically mentioned London but it did say there were regional differences. I guess higher incomes in London plays a part??
The Cardiff Uni research (Pensions On Divorce) used a sample of court files from three areas - the North, South and West.
I see, STIDW.
SM is handled as a separate issue totally.
I'm sure his Solicitor will advise him when we sort out the consent order.
He has made it clear it will end if there is another man cohabiting to maintain me (which is fair enough).
You need your own independent legal advice before agreeing a consent order. I'm not a lawyer and I live in Scotland where the law is different.
In England & Wales spouse maintenance ends on remarriage and usually on cohabitation. However my understanding is occasionally there are circumstances when SM continues even though the recipient is cohabiting eg when the recipient can't work because they care for disabled children and the new partner is also disabled and doesn't work. Also the children could suffer undue hardship if the recipient's cohabiting relationship broke down and a parent withe majority of childcare couldn't work for some reason. Therefore it may be appropriate to word the agreement so that SM ends or is reduced to a nominal amount on cohabitation, or by further order of the court.
I have been through this exercise recently with ex-wife. Spousal Maintenance is payable if receiving partner (usually ex-wife) can demonstrate that her total income from all sources (earnings, benefits, tax credits, interest from savings or assets) is insufficient to cover her reasonable needs. Spousal Maintenance is meant to make up the shortfall so that receiving partner is not in undue hardship.
Paying partners (usually ex-husband) income and needs will also be taken into account. If there is a surplus between income and outgoings then this will be used to determine what Spousal Maintenance, if any, is due.
Ex-wife was asked to produce a schedule of all income and her essential outgoings and came to a staggering shortfall of 4500 per month! Judge (female) saw through it and remarked it was yet another example of a scorned ex-wife basing expectations on greed and anger. Settlement was made at 400 per month till child is 14 on logic that ex-wife will then be able to work full time and hence be less dependent on myself.
In essence Spousal Maintenance is intended to assist receiving partner in their transition to independence. It is not, as many ex-wives like to think, a guaranteed right and a form of punishment for the ex-husband.
The mediator doesn't take the decisions, she only suggests, you and your husband decide.
If I were you, I would go for the substantive option for these very simple reasons:
1) he is paying more child maintenance than he should but he can revert to the CMS minimum within a year of your agreement (that is a maximum of 15% of his net salary a year or 20% if there's is more than one child, but these will reduce proportionally to how many nights a week they stay over with him)
2. If you have the nominal amount, you will get the 50p a year and certainly, you can get back to court to ask for more if you need to. But then, if you need to go back for more is because you are struggling financially, and if you are struggling financially how are you going to pay for the £1000s you will need to spend in solicitors/court fees to get your case seen? You simply can't soyou are at the mercy of his good will that may not last for long especially if you both move on, there are new partners or kids on the scene.
If I were you I would suggest that that amount he is already happy to pay is divided, so part of it is classed as CM as per CMS calculation and the difference is renamed spousal maintenance.
Obviously, the spousal maintenance may come to an end if you cohabitate or remarry by it is still a much safer bet than finding yourself receiving the minimum child maintenance and not being able to do anything about it.
Child Maintenance is payable till child is 18 regardless of any Spousal Maintenance. If receiving partner remarries then Spousal Maintenance will stop immediately. Paying partner may also request a review of the Child Maintenance to be paid on logic that ex partner is now married and will be receiving contribution from new partner
Child maintenance won't be reviewed if the resident parent marries. That will be only the case if NRP have other kids living at home.
Either parent can seek another assessment if circumstances have changed. If PWC is living with someone for a reasonable time then both CM and SM could be reviewed on logic that PWC new partner can help with living costs, assuming they are in employment.
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