1025 Maintenance in case of separated spouses

Summary

This section provides that payments made under a maintenance arrangement by one party to a marriage to the other party of that marriage will —

• be payable without deduction of tax,
• be deductible in computing the total income of the payer, and
• be chargeable to income tax in the hands of the recipient.

While a separated couple are treated for tax purposes as if unmarried, there is provision in section 1026 for a separated couple to jointly elect for joint assessment in which case maintenance payments are ignored for tax purposes and the foregoing paragraph will not apply.

Maintenance payments specifically for the benefit of children remain the income of the payer. No deduction is due in respect of such payments and the recipient is not taxable on such payments.

Details

Definitions

(1) A “maintenance arrangement” is defined as any legally enforceable arrangement under which payments are made by one person to another in consideration, or in consequence, of the annulment or dissolution of a marriage or of a separation of the kind referred to in section 1015. The definition is wide enough to cover a court order, an arbitration award and a deed of separation including foreign orders and arrangements. It is not intended that any regard be had for tax purposes to unenforceable payments.

A “payment” includes a part of a payment.

References to a child of a person includes a child in respect of which, before making the maintenance arrangement, the person concerned was entitled to relief under section 465 in respect of an incapacitated child.

Application

(2)(a) This section applies to payments made, directly or indirectly, by a party to a marriage, under or pursuant to a maintenance arrangement relating to the marriage, for the benefit of either a child of that party or the other party to the marriage. The payments must be —

• made at the time when the wife is not living with the husband,
• legally enforceable, and
• annual or periodical.

This section does not apply to payments under a maintenance arrangement made before the 8th of June 1983 unless the arrangement is replaced by another new or varied arrangement or the couple jointly request that the section should apply.

(2)(b) Any payment which —

• is made under a maintenance arrangement, and
• is not for the benefit of a third party,

is treated as being for the recipient’s benefit.

This applies whether or not the payment is conditional. For example, if the payment is conditional on the recipient (usually the wife) maintaining the child without specifying the amount she must spend on the child, that payment is treated as the recipient’s income. While payments to third parties are excluded, payment of rent or school fees are treated as of benefit to the recipient spouse or child and not the landlord or owner of the school.

(2)(c) Where an ascertainable sum is allocated under the maintenance arrangement for the benefit of the child, such sum is not considered to be income of the recipient spouse, but is treated as income of the paying spouse (under section 795 income settled on a minor is deemed to be the income of the settlor).

Tax treatment where payment is for benefit of the recipient spouse

(3) Where the payment is for the benefit of the recipient spouse, and the couple are assessed to tax as single persons —

• the person making the payment is not entitled to deduct and retain income tax from the payment,
• the person receiving the payment is chargeable to tax under Case IV of Schedule D, and
• the person making the payment is entitled, on making due claim, to deduct the payment in computing his/her total income for tax purposes for the year in which the payment is made.

Tax treatment where payment is for benefit of child

(4) Where the payment is for the benefit of a child, and whether or not the parents are taxed singly or jointly —

• the person making the payment is not entitled to deduct and retain income tax from the payment,
• the payments is not regarded for income tax purposes as the income of the child,
• the total income for tax purposes of the person making the payment is computed as if the payment had not been made, and
• for the purposes of a claim to the incapacitated child allowance, the payment is regarded as a contribution towards the child’s maintenance by the person making the payment, even though the payment may be made to that person’s spouse for the maintenance of the child. This, in effect, gives the payer a right to all or part of the incapacitated child allowance.

Application of general income tax provisions

(5) Where a spouse is claiming a deduction of the amount of maintenance from total income, this section applies the general income tax provisions governing —

• deductions allowed in ascertaining taxable income and provisions relating to reductions in tax (section 458),
• general provisions relating to allowances, deductions and reliefs (section 459), and
• the rate of tax at which repayments are to be made in respect of such a deduction (section 460).

Relevant Date: Finance Act 2021