The Types of Spousal Maintenance You Ought to Know

The Types of Spousal Maintenance You Ought to Know

Regular and Interim Spousal Maintenance

Spousal Maintenance is often a poorly understood component of Family Law Property matters. It is triggered when one party is unable to support themselves adequately and the other has the capacity to provide.

Spousal Maintenance operates in the context of both marriage breakdowns and separation following de facto relationships.

Section 74 of the Family Law Act provides the Court with power to Order that one party pay the other spousal maintenance, either on an ‘interim’ basis (while the matter is proceeding through Court) or on a final basis, for a specified period following Final Property Orders.

When making an Order for maintenance, the Court is required to consider the 2-step threshold test at Section 72 of the Act, namely that, ‘a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately.

When considering whether the party applying for maintenance can support themselves adequately, Centrelink benefits are excluded – as held in the matter of Sandberg [2016] FamCA 357.

Often in Family Law Property disputes, one party is unable to engage in full-time employment as a result of the parenting obligations for the children of the relationship, or by virtue of having lost out on career opportunities by serving as the primary homemaker and parent during the relationship. These are relevant and highly persuasive matters which the Court gives considerable weight.

Precedent Review

In the Marriage of Mitchell (1995) 19 FamLR 44, the Full Court held that even a final property division of 90% in favour of the wife of an asset pool of about $300,000 (excluding superannuation, which the husband kept in full – the net effect of the superannuation-inclusive pool was about 64% to the wife) did not disqualify the wife from spousal maintenance.

The Full Court remitted the issue of spousal maintenance to the trial judge and made an order that the husband pay the wife the sum of $150 per week by way of interim maintenance. In so doing, the Full Court said that there is no fixed or absolute standard to be applied, “the days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately”. Where the line is to be drawn will depend upon the circumstances of individual cases.”

Regarding the wife’s inability to obtain work, the Full Court noted, ‘importantly, and particularly in more recent times, there is the notorious circumstance that there is a significant gap between theory and reality for employment, especially for people in middle age, lacking experience and confidence, and who have been out of the skilled work-force for many years, and in the context of current high unemployment’. The Court expressly noted the gravity of these circumstances and stated that Courts must take notice of these difficulties and apply the spousal maintenance powers accordingly in a realistic way.

Thus, in the case of Bardsley [2016] FamCA 408, the Husband was earning $180,000 gross annual income. The Wife was caring for the parties’ 2-year old daughter. The Court Ordered the Wife to be paid $500.00 per week from the Husband in maintenance.

In the matter of DJM v JLM [1988] FamCA 97, the Full Court found that the Husband was capable of “great deviousness” and that the husband’s decision to leave active commercial life (where he was earning about $200,000 gross per annum) and enter academia (where he was earning $80,000 gross per annum) was the break-up of the family unit, a decision the husband would not have taken, or would have delayed, if the family had stayed together. The Court held that despite the Husband’s intentional reduction in his income, it was open to the Court to give weight to the ability of a party to earn income, especially where the opportunity clearly exists to utilise that ability. The Full Court Ordered that the Husband pay the Wife weekly maintenance of $150 per week (reduced from the primary judgement of maintenance of $500 per week to the Wife).

Take Home Points

Spousal Maintenance is an often misunderstood component of Family Law Property disputes. It is, however, a very relevant and often desperate matter for the parties who are reliant on the income or provision from the other party for their expenses and ongoing needs.

Many times, the party with the greater income or financial resources attempt to strong-arm the party with less income by forcing them to live in desperate financial need. It is important, in those circumstances, to engage a lawyer with experience in Family Law Property matters and spousal maintenance, both interim and urgent maintenance provisions (a topic which will be covered in a separate article).

URGENT Spousal Maintenance

This part of the article focuses on an even less-known area of ‘Urgent’ Spousal Maintenance. The Power of the Court to Order Urgent maintenance arises from Section 77 of the Family Law Act (as distinct from Section 74 of the Act which grants the Court power to make ordinary maintenance Orders).

The High Court addressed the requirements of the urgent maintenance provisions in the matter of Hall [2016] HCA 23. The High Court said that a two-part condition is required:

First, it must appear to the court that a party to the marriage “is in immediate need of financial assistance“.
Second, it must be “not practicable in the circumstances to determine immediately what order, if any, should be made“.

These considerations are separate from those required by Section 74 and its associated Section 72.

Real-Life Application of Urgent Maintenance

In a recent case in which I represented the Wife, the Husband’s lawyers filed their Response and supporting Affidavit material one day before the First Court date. The Husband was earning about $150,000 gross per year. My client (middle-aged) was only employed on a casual basis and earning about $20,000 gross per year. During the relationship, she was primarily responsible for the homemaker and parenting matters, which freed the Husband to pursue his career advancements. She had made numerous job applications for permanent full-time work but was rejected for lack of physicality and other generally nebulous reasons.

At Court, I appealed to the Court’s power pursuant to Section 77 to Order Urgent Maintenance, even though it was impractical in the circumstances (by the Husband’s very late filing of his Court material), to determine what Order should be made. I made it clear that we were not relying on the standard Section 74 powers, which have a higher evidentiary requirement to be satisfied.

The Husband’s (very experienced) barrister did her best to cast aspersions as to my client’s income and alleged failure to make proper disclosure. I represented my client personally (as she could not afford to engage a barrister) and drew the Court’s attention to all the relevant matters in her affidavit, which I had prepared, filed and served on the Husband’s lawyers months earlier.

Take Home Points

The Judge found in my client’s favour and Ordered the Husband pay my client $300 per week in maintenance. Those funds were desperately needed and helped my client make ends meet for the balance of the Court proceedings. It also helped her to realise the strength of her application and empowered her to fight for a fair settlement rather than taking the measly terms initially put by the Husband.

Significantly, the Husband also realised that he could no longer dictate terms to my client by relying on his superior financial stability and disregarding the Court process (with his inordinately late filing of documents and generally flippant regard for my client’s application).

The Husband terminated his relationship with his lawyers and engaged new lawyers. We subsequently resolved that matter at Mediation on a final basis, without the need for trial. I was able to negotiate a deferred fee to our barrister, on the understanding that he would be paid from the settlement proceeds. He was very understanding of my client’s poor financial position and generously accommodating of our request. My client was thrilled. She is one of the many who have left glowing reviews of our services.

JosephDavid Lawyers are experts in Family Law Property dispute and Spousal Maintenance matters. We know the law and we don’t back down – we fight hard, for your best interests, to help you get the best possible outcome at the lowest possible cost to you.

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