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The Court can no longer decide maintenance orders for children. Such maintenance orders are now made by the Child Support Agency, and calculated in accordance with their statutory formula.
Sometimes a ‘nominal’ maintenance Order will be made for a spouse such as for £1 a year. This will keep the parties claim alive, and allow it to be increased by further Order of the Court should the need arise such as on the ill health, or inability to work of a mother caring for young children.
When a ‘clean break’ Order is made, it would be usual to extinguish any right to ongoing maintenance, either immediately or after a relatively short period.
Maintenance when awarded can always be varied up or down depending on each parties financial circumstances. Thus it could be affected by the remarriage of one party, or unemployment, illness or an inheritance.
Interim Maintenance and Maintenance Pending Suit
These can be claimed as soon as the Petition has been issued and are intended to be an emergency measures to provide an income before the final amount is settled or dealt with at a final hearing. Maintenance Pending Suit will end on the pronouncement of decree absolute. Most maintenance Orders will end on remarriage or cohabitation of the person receiving maintenance and on death.
Procedure for Maintenance Applications
The application for a maintenance order will be contained in the divorce or judicial separation petition, but will not be proceeded with by the court until further application. This is to allow the parties an opportunity to agree.
If matters can not be agreed and before notice of intention to proceed is filed, a protocol must be complied with. This deals with the early disclosure of documents and disclosing evidence which will be relied upon.
There will then follow a Financial Dispute Resolution Appointment (FDR). The purpose is to consider the issues outstanding and to provide a further opportunity to reach agreement.
The hearing is conducted by a District Judge who will not have anything else to do with the case. If a final hearing proves necessary, this will be before a different District Judge. All FDR discussions are completely confidential and privileged so that if agreement cannot be reached the discussions cannot be aired at the final hearing. The Judge at the FDR will however say what he would find were he to be trying the case. As a result, most cases settle at this stage.
