It’s safe to say that the temperatures have started to drop. Summer heatwaves have quickly become a distant memory. Alongside the horrifying thought of having to retrieve your coat from the cupboard, thoughts are also turning to thermostats and the cost of heating homes this winter. The headlines have moved on from COVID-19 to the cost-of-living crisis, and the warnings should not be taken lightly. People are facing a level of inflation that hasn’t been seen for fifty years and energy bills are predicted to reach record levels. As a result, it’s clear that everyone will feel the inevitable financial pinch.

But what does this mean if you want to get a separation or a divorce from your partner? Separation is a time of heightened stress, which can be compounded by worries about financial difficulties. An arrangement for paying for essential living costs is often the first matter which requires to be addressed when a couple separates. It is almost impossible to deal with the long-term aspects of separation if you are worried about how you will meet next month’s bills or feed your children.

Obligation of aliment

When you get married or enter into a civil partnership, part of the legal commitment made is that you will financially support each other. We call this duty the obligation of aliment, which is the legal term for spousal maintenance. This duty exists until you are divorced or until one party dies. The court can, in certain circumstances, continue this obligation after divorce is granted in a limited fashion.

An order for aliment can be obtained from the court at any time during your separation. You do not need to do this as part of an action for divorce. The court can make what is known as an interim order of aliment. This means that a quick decision can be made in the short term.

Aliment can also be agreed directly between the parties, and sometime this will be recorded into a contract called a Minute of Agreement.

In order to obtain a court order for aliment, the court will consider the following three matters:

  • The needs and resources of the parties

The person seeking aliment has to provide evidence that they need financial support from their spouse. This is usually done by demonstrating that their income from all sources is not sufficient to meet all of their essential costs.

The court will expect both parties to lodge a schedule showing all their income and essential expenditure. This should be supported by documentary evidence, often referred to as vouching. This typically includes the spouse’s last three bank statements, their payslips and recent bills.

The court will also consider current resources. This means that even if the couple have been separated for some time, both spouses will be expected to show the court what they have available to them at the time of the hearing to meet their obligation of aliment. This means that the court is able to consider resources which are not defined as matrimonial property, for example inherited funds held by one party in a savings account.

  • The earning capacities of the parties

The court will want to know if either party could reasonably earn more money to support themselves or each other. A part-time worker, for example, would need to explain why he or she could not pick up extra shifts at work. This might be because no shifts are available or because they have to look after children. Someone with no job at all would need to explain why they cannot work.

  • Generally all the circumstances of the case

The court may also consider any other relevant information. For example, if one spouse is living with a new partner, the court might want to know how that person is contributing to the spouses’ household.

Material change in circumstance

If you have a court order for aliment or if you have a Minute of Agreement which sets out an agreement on spousal aliment, it is possible to have the sum of aliment payable reviewed in a material change in circumstance. Material change in circumstance is a wide term: it can include a fall in income, a change of job, a new baby joining the family or even just a passage of time if this would make it fair to review matters.

At Johnson Legal, we are confident that that the current cost of living crisis would be accepted by the court as material change in circumstance if it substantially affects a spouse’s ability to pay their essential costs or a spouse’s ability to pay aliment.

If the spouses cannot agree that a variation of aliment should be made, either party can apply to the court to have the issue determined. The court will consider the legal test set out above to consider if a variation would be fair in all the circumstances.

If you have an award of aliment or an agreement about aliment which is now insufficient to meet your essential costs, please get in touch. Similarly, if you are now facing making payments of aliment which will leave you with insufficient funds to meet your own essential costs, we can help. We will help you review matters and we can give you solid legal advice about your options.