spousalIf there is a phrase in family law that will strike fear and confusion into the hearts of a divorcing couple, it’s spousal maintenance. You might have also heard the term ‘alimony’, which is the term used in the United States.

What is spousal maintenance?

Spouse maintenance is financial support paid by a party to a marriage or de facto relationship to their husband or wife (or their former husband or wife) in circumstances where they are unable to adequately support themselves.

There are two threshold issues the court will consider. The first is whether the person claiming spousal maintenance has need (outlined below). The other issue is whether the other party has capacity to pay maintenance. Need for spousal maintenance takes into account:

  • your age and health

  • your income, property, and financial resources

  • your ability to work

  • what is a suitable standard of living,

  • if the marriage has affected your ability to earn an income

A court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.  

Applications for spouse maintenance if you are a party to a marriage must be made within 12 months of your divorce becoming final.

Applications for de facto partner maintenance must be made within 2 years of the breakdown of your de facto relationship.

Seitzinger & Seitzinger [2014] FLC93-626

This case explores a situation in which leave to seek spousal maintenance after divorcewas awarded.

 

  1. The parties were married in 1982 and separated in June 2012. They have two adult children, who live in investment properties owned by the husband.

  2. The husband is 55 years of age and is employed by a local government body. He has a salary package worth $244,218 per annum, and is now married to a work colleague who earns about $86,000 per annum.

  3. The wife is aged 50 years. She worked one day a week before separation, but has not worked since February 2013, after becoming depressed. Her income at the time of the hearing was a “sickness allowance” of $257 per week from the government.

  4. The wife is living in the unencumbered former matrimonial home. She has no savings and claims to be in debt to relatives who have helped meet her living expenses.

  5. The husband and his new wife have borrowed over $800,000 to purchase a home. At the time of the hearing below, they were trying to conceive a child and the husband was paying $200 per week as his half share of IVF treatment.

 The wife sought leave to apply for $1,000 per week in spousal maintenance to support her living expenses.

The family court judgement explains how it decides what an adequate amount might be.

“I have defined inability to support oneself ….. as depending on the question of whether the wife can generate funds from her own resources or earning capacity to supply her own needs. This excludes consideration of social security entitlements of voluntary payments made by the husband.

‘Adequately’ imports relativity. Subsistence may be adequate for some applicants, but not for others. It must be viewed in light of para (g) of s 75(2) ‘a standard of living that in all circumstances is reasonable’.

The next question is whether there is any evidence that she lacks the resources to produce that income herself either through earning capacity or from her assets.”

Therefore, the court assesses ‘adequate’ subjectively and on a case-by-case basis.

In this case, the wife says that she suffers severe depression and is presently unable to work. During the marriage the wife was employed part-time as a shop assistant at a retail store, working one day a week. She provided reports from a clinical psychologist as part of her evidence.

The report noted that the wife appeared to be “experiencing a Major Depressive episode with anxiety symptoms”. The psychologist also states: “The wife has been seeing me this year for therapy for depression resulting from a sudden separation and divorce. [The wife] has not been coping with her situation and has had difficulty functioning. I believe it is unlikely that she will be able to return to work within a 2 year period.

The family court judge goes on to say that: “For the reasons given, there is merit in the wife’s application for periodic maintenance. The wife has been left dependent upon social security and/or the charity of her family. I therefore propose to grant leave to appeal against that part of the decision and to allow the appeal [for interim spousal maintenance].

It’s important to note that usually spousal maintenance is awarded on an interim basis.

If you have a question about separation, divorce or spousal maintenance, please don’t hesitate to contact us.

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