the obligations of supporting the other spouse
The Family Law Act (The Act) provides that where one spouse can establish that they cannot, by their own means, support themselves to a reasonable standard of living, and that their former spouse has the capacity to support the first spouse, they should bear the responsibility of doing so (See sections 72 – 75 of the Family Law Act
Following the amendments to The Act in 2009, de facto couples who separate after March 2009 are able to claim spousal maintenance from their former de facto partner, including a same sex de facto couple[i]. Even though a couple have separated, the obligations of supporting the other spouse do not end simply upon separation.
The Act provides that where a party cannot support themselves by reason of a physical or mental illness, as a result of having the care of a child born to the relationship under the age of 18 years, or for any other valid reason, they will be entitled to spousal maintenance[ii].
The second step in a spousal maintenance application, after one party is found by a Court to have a need for spousal maintenance, is establishing that the other party has the financial capacity to maintain their former spouse[iii].
It will only be upon proving to the Court that both requirements are satisfied, that a Court will make an Order for spousal maintenance[iv].
For the first step, it will be helpful to obtain medical evidence from treating medical practitioners in order to prove to the Court that there is a medical basis upon which the claiming spouse cannot undertake paid employment so as to support themself by their own means.
It is also extremely important that evidence is placed before the Court of the attempts a spouse has made to obtain work. If the spouse is working, then evidence will need to be adduced that as a result of either their medical condition, the care of a child or their limited earning capacity, that they are unable to earn sufficient income to support themself to a reasonable standard of living before the Court will find that they have a ‘need’ for spousal maintenance.
If paid employment is available to a spouse and they are simply not exercising their capacity to undertake that paid employment, then the Court will find that they are not entitled to spousal maintenance, as they should first exhaust all other options of obtaining financial support before bringing a spousal maintenance application before the Court.
Once a party has been able to establish a ‘need’ for spousal maintenance and the capacity of their spouse to provide support, they then need to justify the amount sought to be paid, whether as a lump sum or periodic payment (e.g. weekly). This will involve providing the Court with a very detailed Financial Statement which informs the Court of their financial position, including their income and expenditure each week[v].
In essence, what will be almost mandatory in a spousal maintenance case is that the spouse applying for maintenance have a deficiency in their weekly income versus expenditure and that the responding spouse have an excess of income versus expenditure. However, in a recent case the writer was involved in, the Court found a spouse liable to pay spousal maintenance despite that spouse having a weekly deficit[vi].
It is also prudent to provide to the Court evidence of the claimed expenses, by way of receipts or credit card statements. If a need for, and capacity of the other spouse to pay, is established for spousal maintenance, then the Court will turn to what are referred to as the reasonable weekly needs of the claiming party.
If for example, a spouse has taken money from a joint bank account, or otherwise had available to them any lump sum amount post-separation, they will also need to provide the Court with a very detailed account of their expenditure of those monies. A failure to do so will inevitably leave open an argument to the other spouse to the effect that the claiming spouse has received funds sufficient to support themself on an interim basis.
For the person potentially liable to pay spousal maintenance, in responding to the Application, your task (and our task as your Solicitors) is to produce evidence to support the fact that either your spouse does not have a ‘need’ for maintenance; and/or that you have no capacity to pay spousal maintenance whether from income, or available financial resources; and/or that the ‘reasonable weekly needs’ claimed by your former spouse are not justified on the evidence or are not ‘reasonable’ in the circumstances.
However, in considering spousal maintenance claims, the Court will have regard to the standard of living the parties enjoyed prior to their separation[vii].
It is important to note that The Act specifically provides for the Court to disregard any means tested pension the claiming spouse is or could receive[viii]. The reason for this is that the provisions of The Act which address spousal maintenance claims were enacted, the writer opines, so as the Government via Centrelink, and ultimately the tax payer, would not be liable to support someone where their former spouse can reasonably afford to do so.
Whilst this may be difficult to comprehend for a person Ordered by a Court to pay spousal maintenance, the writer’s view is that the exclusion of the pension entitlements of the claiming spouse by the legislature is appropriate in the circumstances. To this end, I invite debate from any of my family lawyer colleagues who have a differing view.
With the above having been said, if you are considering making a claim for spousal maintenance, you should provide the Court with as much evidence as possible to establish the need for your claim, the capacity of your spouse to provide you with support from their own income or financial resources, and that the claimed amount of spousal maintenance is reasonable in the circumstances of your matter.
If a party brings a spousal maintenance Application without sufficient grounds, or a party resists such an Application on insufficient grounds, the Court may have regard to an Application by the “winning” party for the “losing” party to pay their costs[ix].
We therefore suggest that if you think you might be entitled to spousal maintenance or that your spouse may be so entitled, that you arrange an Initial Consultation with one of our Family Lawyers to discuss your matter further.
i] Under Subdivision B, Division 2, Part VIIIAB of The Act subsequent to the legislature enacting the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.
[ii] See Section 72(1) for married couples or Section 90SF(1)(b) for de facto couples.
[iii] See Section 72(1) for married couples or Section 90SF(1)(a) for de facto couples.
[iv] Again, general reference is made to Sections 72 – 75 of The Act and case law on point, including recent cases where Wiltshire Lawyers have acted for clients where spousal maintenance has been in issue.
[v] See Section 74(1) of The Act in relation to the Court’s discretion in spousal maintenance cases.
[vi] In that particular case, evidence was produced by the applicant to the effect that the respondent had the capacity to meet spousal maintenance payments by other means (i.e. other than income).
[vii] The writer intends, in a later article, to address this specific point in more detail with reference to case law on point, so be sure to check our website regularly.
[viii] See Section 75(3) for married couples and Section 90SF(4) for de facto couples.
[ix] Reference should be made here to the provisions of Section 117 of the Family Law Act 1975 in relation to the general presumption under s117(1) that each party bear their own costs, but the qualifications to that presumption and the circumstances in which the Court will consider the making of a costs Order in favour of one of the parties to the proceedings.
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