Spousal Maintenance – When Are You Entitled to Financial Support After the Divorce?

Spousal maintenance – also referred to as maintenance payments – is financial support that one spouse may be ordered to pay to the other spouse after divorce. The purpose is to ensure that the spouse who has had limited opportunity to earn their own income after the divorce receives necessary financial support. The rules on spousal maintenance are set out in the Marriage Act Sections 79–85.

Certain conditions must be met in order to receive spousal maintenance:

The spouse’s ability and opportunity to provide adequate maintenance must have been reduced as a result of:

• Care for joint children, or
• The allocation of joint tasks during the marriage

Example that satisfies the conditions: One spouse has been a stay-at-home spouse and taken care of the children so that the other spouse could work more, and therefore has limited opportunities in the labour market after the separation.

There is nevertheless no automatic entitlement to spousal maintenance even if the conditions are satisfied. A discretionary overall assessment must also be made of whether spousal maintenance should be awarded, based on the specific circumstances of the case. Relevant factors include, among other things:

• The length of the marriage
• The parties’ age
• The scope and duration of tasks during the marriage
• The parties’ financial situation

If the above conditions are not met, spousal maintenance may nevertheless be awarded in exceptional cases if there are “special grounds”. This is a narrow exception, but may, for example, include:

• Long-term marriages with large financial differences between the parties after the breakdown
• Long-term marriages where one spouse has become 100% disabled during the marriage

However, a specific assessment must always be made. For example, large financial differences between the parties will not always argue in favour of awarding spousal maintenance. If the “weaker” party in any case receives a large sum in the divorce settlement and can thus provide for their own maintenance, it is of lesser importance that there are large financial differences between the parties.

The amount of spousal maintenance is determined on the basis of a discretionary assessment, based on the following factors:

• The entitled party’s need for financial support
• The liable party’s ability to pay
• Both spouses’ income, assets, debt and other maintenance obligations

It is important to note that the maintenance is not intended to equalise all financial differences, but to ensure a reasonable level of financial support.

As a general rule, spousal maintenance is granted for up to three years. If there are special grounds for doing so, maintenance may be granted for a longer period or without a time limit. As a general rule, maintenance should be set for a longer period or without a time limit if the marriage has been long-term. Whether the marriage is considered long-term must be assessed specifically in each individual case. However, the preparatory works to the Act state that the starting point for the assessment will be that the marriage must have lasted for at least 15 years if the parties have joint children, and otherwise for at least 25 years.