Upon separation there is a mutual obligation to help maintain the other spouse. That mutual obligation lasts, potentially, until the point of divorce and is referred to as "aliment".
It is still possible for a spouse to make a claim for support following divorce. Maintenance after divorce is referred to as "periodical allowance". Periodical allowance in Scotland is relatively unusual and is awarded for a fixed period of time, which is usually a maximum of three years after divorce is granted.
How is the amount of Aliment calculated?
The court determines whether it is appropriate for aliment to be paid and, if so, to what extent based on the respective needs and resources of the parties and, generally, all the circumstances of the case. Accordingly, the party seeking support has to establish a need. This would often mean, for example, that the applicant's necessary expenditure outweighs his or her income. The applicant would require to provide evidence or vouching of income and expenditure and resources.
If a need is established, then the court has to determine whether the other party is in a financial position to make payment of aliment. If that party claims that he or she is unable to do so (or unable to make payment of the sum claimed by the applicant) then, again, evidence or vouching requires to be produced. The paying spouse will only be expected to pay what can be afforded.
Date of commencement of payments
Often, people expect payments of aliment or spousal support to be backdated to the date of separation. That is not the case. Payments of interim aliment are not generally backdated. Accordingly, if no agreement regarding payment of aliment can be reached in the short term, it is important to apply for an order from the court as quickly as possible. A delay in making an application is only likely to be penalise the party who has a requirement for aliment.
Variation of Aliment
An award of aliment can be varied or even reduced to nil if there has been a material or significant change in circumstances since the date of award or agreement. Again, vouching would require to be produced to substantiate the change in circumstances.
Of course, at present, given the uncertain economic situation there may be a number of applications seeking variation of aliment. Redundancy would generally amount to a material change of circumstances – subject to the extent of any redundancy payment received - as would a significant reduction in working hours and, accordingly, income. By the same token, redundancy or a reduction in hours may create a need for aliment where there has not previously been such a requirement.
Enforcement of Aliment
An agreement entered into between parties would usually record that interest would accrue on any non-payment of aliment from its due date until paid. A court order would usually contain a similar provision in respect of interest. If an agreement has been registered at the Registers of Scotland or a court order has been granted then a party does not require to return to court in order to enforce payment of aliment. Various steps can be taken, including arrestment of the other party's earnings in the event that payment is not made.
Child Maintenance or Support
The requirement to make payment child maintenance or child support payments is separate from the duty to aliment a spouse. The courts, in Scotland, cannot deal with claims relating to child maintenance. All such claims are dealt with by the Child Maintenance Service (CMS) formerly the Child Support Agency (CSA). Unlike spousal aliment, there is a set formula for calculating child maintenance payments, which is based upon the payer's income, the number of nights the child or children reside with him or her and the number of other children which the payer has in his or her household. There is an online Child Maintenance Service calculator which allows both payers and payees to establish an appropriate level of child maintenance.
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Our family law team is made up of experienced family law solicitors around the country. Many of our team are trained in various methods of dispute resolution, including mediation and collaborative practice, and are Accredited by the Law Society of Scotland as specialists in their field.
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