matters to be taken into consideration in relation to future needs in a property settlement
When the Court is determining a “just and equitable” division of assets between parties, it is required to consider the “future needs” of a spouse or de facto partner are taken into account by the court in a spousal maintenance application under Section 75(2) of the Family Law Act.
The future needs of a person are taken into account by the court when deciding an application for spousal maintenance. An application for spousal maintenance is premised on Section 74 of the Family Law Act 1975 (FLA) which empowers the Court to make orders in spousal maintenance proceedings. Married spouses and de facto partners can now file applications for spousal maintenance.
At the time of the separation or divorce of the parties a necessary action for some is the application for spousal maintenance. This is especially applicable to the spouse or de facto partner who stayed at home as a result of which, he has no job and income. The lack of employment and income puts additional stress on a person who is going through a divorce or separation because the terror of having no financial provisions for the future is very real.
The FLA shows deep concern and sympathy for the spouse or de facto partner who cannot meet reasonable needs. The spouse or de facto partner who has a surplus of funds is expected to help out the other spouse who is not as financially fortunate.
Pursuant to Section 75 of the FLA, the court will be taking into consideration certain matters when determining the amount to be awarded as spousal maintenance. It must be remembered that spousal maintenance is not a matter of right. One must have to apply for spousal maintenance and prove to the court that he deserves it.
The court will not only be taking into account the future needs of the applicant but also the financial capacity of the other party to provide. In considering what are the future needs of the applicant that will entitle him to spousal maintenance, the court will be looking into the following matters that concern both parties:
- their ages and health;
- their ability to find employment and earn an income;
- their property and financial resources;
- who has the primary care of their child or children;
- whether either of them is responsible to support another person;
- their standard of living;
- their eligibility for pension, allowance or benefit; and
- cohabitation with another person.
The aforementioned are some of the considerations which the court will need to determine the future needs of the applicant after the separation or the divorce. A case for spousal maintenance is not one-sided because the respondent is required to show proof as to the extent of his capacity to financially provide for the applicant. It may be that the respondent does not have the capacity at all and he must be able to furnish evidence to the court that he does not have sufficient income or funds to support the future needs of the applicant.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.