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Do we need to forum shop to get maintenance or just apply the law?

View profile for Mike Devlin
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It has been reported recently in the national press that your chances of obtaining maintenance are governed by the area you live in. So when should you make an application and what are your chances of success?

There are two types of maintenance, support that assists you through the divorce process and maintenance which is put in place for life after divorce.

Maintenance though the divorce process is commonly called maintenance pending suit and is designed to preserve the status quo pending a final determination. The law is governed by statute and case law. The request must be reasonable and could be used to pay the mortgage or maintain immediate needs. Interestingly, it can also be used to assist with legal fees provided there are no other means to pay them. There has been a recent change to the law in that the provision of legal fees is now provided for specifically by statute. This is to try and redress any inequality where one party can afford representation and the other cannot.

The other type of maintenance we are called upon to advise about is final maintenance; that is to say the position after divorce. The court is directed to consider whether a clean break is feasible. A clean break is where there is a capital settlement with no continuing obligations to pay maintenance. The court will look to try and make parties self sufficient but that is not possible in all cases. Not only do you have to consider the amount payable but the term it would be payable for. Naturally, the continuing care of children is an important factor together with the parties’ position after divorce to ensure that the parties do not suffer undue hardship.

Remarriage will of course end any maintenance order and in some cases cohabitation may have the same effect. Specialist advice is essential to consider whether you should look for more capital or income...all situations turn on their own facts. Once the court makes an order dismissing claims it is too late.

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