If you and your spouse decide to separate, one of the main issues that causes concern is thinking about future finances, particularly if you have been dependant on your partner over the course of the marriage.
When separation occurs there is a mutual obligation to help maintain the other spouse or civil partner. The mutual obligation that lasts, potentially, until the point of divorce is referred to as aliment. It is also possible for a spouse to make a claim for support after divorce has been granted. This is referred to as periodical allowance.
This article will answer some of the frequently asked questions surrounding Aliment and Periodical Allowance.
Frequently Asked Questions
What is Aliment?
When spouses or civil partners separate one party may need financial support from the other. In Scotland this is called aliment. During a marriage there is already a mutual obligation to support each other financially. This is known as spousal aliment. The need to regulate aliment only arises when the relationship ends.
How is Aliment Calculated?
Often, parties will agree on the amount one will give the other and those payments can be made in a variety of ways. For example, they may agree that instead of a certain amount being paid every month, one will cover bills, such as mortgage payments for the other. In the event that agreement cannot be reached, parties have the option of approaching the court to make a decision for them. The court will determine whether it is appropriate for aliment to be paid, and to what extent, based on the respective needs and resources of the parties. The spouse seeking support has to establish a need for this. This would often mean that expenditure outweighs his or her income and there is a requirement to produce evidence or vouching of income and expenditure.
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 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.
The decision as to financial sums will be determined by what the judge thinks is reasonable taking all the circumstances into account. The court can also take into account the earning capacity of both parties. For example, if one party is not working but is capable of doing so and there are jobs available, this will be taken into consideration.
What is Interim Aliment?
Interim aliment is a temporary award of regular payments of financial support. On separation, one party can seek aliment from the other and if this is not agreed a court action can be raised to seek aliment and an interim aliment amount is payable until a final overall decision is reached. The court will also assess interim aliment based on current needs and resources of both parties. The level of interim aliment will be enough to “keep the wolf from the door” and is not intended to furnish the receiving party with a lavish style of living.
Is Aliment paid from the date of separation?
It is often expected that payments of aliment should be backdated to the date of separation. However this is not the case. Usually, payments only commence from the date upon which they are ordered or agreed. Therefore it is clear to see that if no agreement regarding payment of aliment can be reached, it is important to apply for an order from the court as quickly as possible. Any delay in making an application is going to affect the party who has a requirement for such payments.
Can an award for Aliment be varied if circumstances change?
An award of aliment can be varied or even reduced to nil if there has been a substantial change in circumstances since the date of award or agreement. Evidence would be required to validate the change in circumstances.
An example of a material change to circumstances would be being made redundant or having a significant reduction in working hours. On the contrary, a redundancy or a reduction in hours may create a need for aliment where there has not previously been such a requirement.
What is periodical allowance?
After divorce has been granted, neither party has a duty to one another in terms of spousal aliment. Instead, if there is to be any maintenance between the parties is it known as periodical allowance.
Scots law places emphasis on parties having a clean break once a divorce has been granted. Meaning that there should be no financial ties between the parties after they divorce. As a result, the courts will only consider periodical allowance if alternative options are not sufficient to allow a financially weaker party to adjust to their new life post-divorce.
How long does periodical allowance last?
In Scotland, this is normally limited to no more than three years of payments. Periodical allowance will be awarded in cases where otherwise unequal division of the assets is still not enough to bring about fair sharing of the property. It is intended to prevent a spouse being left in financial hardship as a result of the divorce. It may be awarded in a case where the parties have few assets, but one party is earning significant sums.
In rare cases where there is likely to be severe hardship as a result of divorce, payments can be paid for a longer period of time. An example of this might be where one party cannot work due to a longstanding illness. However, this is very rarely awarded in Scotland.
Do you have to go to court to arrange financial support?
It is best practice to try and reach an agreement with your ex-partner if you are in a place to do so. Once an agreement has been reached, you should contact a family law solicitor in order to have the agreement put into writing. This will provide security to both parties going forward as once the agreement has been signed, it will become legally binding on both parties.
What if my ex-partner does not pay spousal maintenance as ordered?
If an agreement for spousal maintenance has been registered with 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. You can instead ask Sheriff Officers to take enforcement action for non-payment which can include an attachment of arresting order, an inhibition preventing a sale of a house or attaching assets.
How is aliment for children decided?
Aliment for a child is a separate matter and is dealt with differently. Parties will often agree an amount to be paid to the party with care of the child. If agreement cannot be reached, then the Child Maintenance Service (CMS) should be contacted and can arrange to make an assessment and collect the aliment if necessary. The starting point for a separating couple should be to have a look at the CMS website for guidance on the likely amount that should be paid. The court very rarely has jurisdiction to deal with cases involving aliment for a child.