This article explores so-called "global" maintenance orders in the context of financial remedy proceedings.
In particular, it considers why global orders have attracted controversy and discusses their advantages and disadvantages as compared to the more frequently used separate orders for child maintenance and spousal periodical payments.
Child maintenance is assessed through the Child Maintenance Service (CMS), which is responsible for making child maintenance calculations. Where the CMS have made an assessment, the court cannot make an order unless one of the exceptions in section 8(1) of the Child Support Act (CSA) applies. The three most common exceptions where the court can make an order is to give effect to an agreement made by consent between the parties, in respect of educational expenses (such as school fees) or to 'top-up' a CMS assessment where the paying party's gross annual income exceeds £156,000.
By contrast, spousal periodical payments, which are for the spouse's needs only, can be awarded by the court for a short, defined period or indefinitely, and there is no specific formula for calculating the amount or duration.
What is a global maintenance order?
A global maintenance order is an order that combines both child and spousal (including civil partner) maintenance into one payment. The paying party makes one "global" fixed periodical payment to the receiving party to meet their needs and to contribute towards the expenses of any dependent children.
The order is only available where there has not been an assessment by the CMS for child maintenance and is usually worded such that the amount to be paid is to be reduced pound for pound by any CMS assessment.
Under what circumstances can a global maintenance order be made?
Global orders were conceived as a holding position until a full CMS assessment could be undertaken. For example, if an application to the CMS by either party has been delayed and the non-resident spouse (the party who does not have the children with them for the majority of the time) has withdrawn financial support, resulting in the dependent party applying for interim maintenance, the court could decide to make a global order as a short-term measure.
Global orders are now frequently used as a longer-term order. For an order to be made, there must be a substantial element of spousal maintenance payable, in addition to the maintenance due to any child, otherwise the court will not have jurisdiction to make an order.
Why are global maintenance orders seen as controversial?
Some argue that global orders undermine the provisions of the Child Support Act and the jurisdiction of the CMS, given that a global order can operate to circumvent the limits on the court's jurisdiction to make an order for child maintenance and are permissible, or "just within the bounds of legitimacy", provided there is a "substantial ingredient of spousal support". However, for some, they represent an over-reach by the court.
Ultimately, the court retains the ability to make these orders, which have been used for over two decades and continue to be.
Advantages of global maintenance orders
Global orders streamline maintenance payments by combining child and spousal maintenance into a single payment which creates clarity, reduces the potential for disputes and minimises the administrative burden. A global order is also flexible and can be varied by either party, although a party seeking a variation will usually need to show there has been a substantial change in circumstances.
The usual wording for a global order is that it will reduce "pound for pound" by any CMS assessment. For the receiving party, a global order therefore gives protection that if a CMS assessment is made, the global order will be varied automatically only to reflect the change in the child maintenance that is now being paid via the CMS. So, the receiving party continues to receive the same level of maintenance payment.
For example, if the court were to order global periodical payments of £1,000 and the CMS subsequently assessed child maintenance at £300 per month, the paying party would have to pay £300 to the CMS and the spousal element of the global order would reduce to £700, so the receiving party would still receive a total of £1,000.
In contrast, once a separate child maintenance order has been in force for a year, either party can go to the CMS and seek an assessment. Once an assessment is made, the child maintenance order ceases to have any effect, and the paying party is only required to pay in line with the child maintenance assessment. This could be a higher or lower sum, leaving one party worse off than under the global order.
Disadvantages to consider
The court can only make a global order where there is a substantial amount of spousal maintenance payable. Therefore, an order would not be appropriate where this was principally a question of child maintenance.
A global order comes to an end if the receiving party remarries. Therefore, if there is a chance that the receiving party will remarry, separate child maintenance and spousal periodical payments provisions would likely be more beneficial, as while the spousal element would come to an end on remarriage, the child element would not. If the global order does end, the receiving party is still entitled to go to the CMS to seek an assessment.
Additionally, if the order is not time-limited, it can create uncertainty about payments to the receiving spouse once, for example, any children become independent. Ultimately, the duration of a global order will be based on the needs of the recipient spouse and the court will be careful not to impose a time limit that is likely to result in financial hardship for either the receiving or paying party.
The suitability of a global order will depend on the specific circumstances of the case. Therefore, while global orders remain a possibility, and continue to be ordered by the courts, it is essential to obtain specialist legal advice to determine whether a global order is appropriate.