Spousal maintenance & lump sum orders: MCA 1973 s. 23
MCA 1973 s. 23 allows court financial provision orders for spouses and children, including periodical payments, lump sums, and payment by instalments.
Official text
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MCA 1973 s. 23 — United Kingdom
On making a divorce, nullity of marriage or judicial separation order or at any time after making such an order (whether, in the case of a divorce or nullity of marriage order, before or after the order is made final), the court may make any one or more of the following orders, that is to say— an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order; an order that either party to the marriage shall secure to the other to the satisfaction of the court such periodical payments, for such term, as may be so specified; an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified; an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified; an order that a party to the marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the court, such periodical payments, for such term, as may be so specified; an order that a party to the marriage shall pay to such person as may be so specified for the benefit of such a child, or to such a child, such lump sum as may be so specified; subject, however, in the case of an order under paragraph (d), (e) or (f) above, to the restrictions imposed by section 29(1) and (3) below on the making of financial provision orders in favour of children who have attained the age of eighteen. The court may also, subject to those restrictions, make any one or more of the orders mentioned in subsection (1)(d), (e) and (f) above— in any proceedings for divorce, nullity of marriage or judicial separation, before making a divorce order, nullity of marriage order or judicial separation order (as the case may be); and where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal. Without prejudice to the generality of subsection (1)(c) or (f) above— an order under this section that a party to a marriage shall pay a lump sum to the other party may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section in his or her favour; an order under this section for the payment of a lump sum to or for the benefit of a child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section in his favour to be met; and an order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court. The power of the court under subsection (1) or (2)(a) above to make an order in favour of a child of the family shall be exercisable from time to time; and where the court makes an order in favour of a child under subsection (2)(b) above, it may from time to time, subject to the restrictions mentioned in subsection (1) above, make a further order in his favour of any of the kinds mentioned in subsection (1) (d), (e) or (f) above. Without prejudice to the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel, where an order is made under subsection (1)(a), (b) or (c) above on or after making a divorce or nullity of marriage order, neither the order under subsection (1)(a), (b) or (c) nor any settlement made in pursuance of it is to take effect unless the divorce or nullity of marriage order has been made final. Where the court— makes an order under this section for the payment of a lump sum; and directs— that payment of that sum or any part of it shall be deferred; or that that sum or any part of it shall be paid by instalments, the court may order that the amount deferred or the instalments shall carry interest at such rate as may be specified by the order from such date, not earlier than the date of the order, as may be so specified, until the date when payment of it is due. See also section 52A (interpretation of certain references to divorce orders, nullity of marriage orders and judicial separation orders).
Section 23 is the money-transfer half of the court's financial powers - what it can order one spouse to pay the other, as opposed to what property it can move, which is section 24. The list in subsection (1) is six orders: periodical payments to the other party; secured periodical payments to the other party; a lump sum or sums to the other party; and the same three in favour of, or for the benefit of, a child of the family. The child orders are subject to the restrictions in section 29 on orders for children over eighteen.
Two features are easy to miss. Subsection (3)(a) says a lump sum may be ordered specifically to enable a party to meet liabilities or expenses reasonably incurred in maintaining themselves or a child before the application was made - so debts run up during the separation can be brought into the order. And subsection (3)(c) allows a lump sum to be paid by instalments, with the instalments secured. That distinction matters later, because a lump sum payable by instalments is one of the few capital orders that can be varied under section 31, while a plain lump sum cannot.
Subsection (2) allows the child orders to be made before the divorce order and even where the proceedings are dismissed after the beginning of the trial. Subsection (5) provides that orders between the spouses do not take effect unless the divorce or nullity order has been made final. Subsection (6) allows the court to direct interest on a deferred lump sum or on instalments. What the court should order, as opposed to what it may order, is governed by section 25.
When it applies
A spouse who gave up work to raise children seeking maintenance after separation.
A lump sum to buy out one spouse's share of the home.
Debts run up while living apart before any application was made.
A payer who cannot raise the whole lump sum at once and wants instalments.
Provision sought for a child of the family who is not the payer's biological child.
What this section does not say
×It is not the route for ordinary child maintenance. The Child Maintenance Service has jurisdiction over most child periodical payments, and the court's role is limited by the Child Support Act 1991.
×It does not transfer property. Transfers, settlements and variations of settlements are section 24, and orders for sale are section 24A.
×It does not say how much. The amount is decided under section 25, and the clean-break duty in section 25A applies to the decision.
×It does not take effect on the conditional order. Orders under subsection (1)(a) to (c) do not take effect unless the divorce order has been made final.
×It does not apply to unmarried couples. There is no equivalent power outside marriage and civil partnership.
Worked examples
Invented situations, written to show how the wording bites. They are not real cases, not judgments and not precedent, and nothing here predicts what would happen in yours.
Illustrative example
One spouse stopped working for eleven years to raise the children and has only recently returned part time. The other says the court has no power to order maintenance and that anything paid would be a favour.
How the wording applies
Subsection (1) lists six orders, the first three of which are periodical payments, secured periodical payments and a lump sum in favour of the other party. So the power plainly exists. The fact that decides the amount and duration is elsewhere: section 25 governs how it is exercised, and section 25A requires the court to consider whether the payments should be limited to a term sufficient to allow adjustment without undue hardship.
How the parties settled it
They agree monthly payments at an agreed figure for five years while the children are at school, reviewable only if either income changes by more than a set percentage, recorded in a consent order.
Illustrative example
A separating couple agree that one will keep the house and pay the other a lump sum, but the payer cannot raise the whole sum at once without selling a business.
How the wording applies
Subsection (3)(c) allows a lump sum to be paid by instalments, and the instalments to be secured. The fact that makes the choice significant is what happens afterwards: a lump sum payable by instalments is one of the few capital orders that can be varied under section 31, whereas a plain lump sum cannot - so the payment structure carries a different degree of finality for each side.
How the parties settled it
They agree a lump sum paid in three annual instalments secured by a charge on the house, with the charge released on the final payment and no variation application by either side unless a payment is missed.
Illustrative example
During a long separation before any application, one spouse ran up credit card debt covering rent and the children's costs. The other says those are personal debts and nothing to do with the settlement.
How the wording applies
Subsection (3)(a) is directly in point: a lump sum may be ordered specifically to enable a party to meet liabilities or expenses reasonably incurred in maintaining themselves or a child of the family before the application was made. The fact that decides whether the debts come in is whether they were reasonably incurred for those purposes, which turns on what the money was actually spent on rather than on whose name is on the card.
How the parties settled it
They agree a lump sum covering the documented rent and school costs from the separation period, with the remainder of the card balance treated as a personal debt of the person who incurred it.
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This page reproduces the text of MCA 1973 s. 23 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.