In this case, both parties were 42 years old. The wife suffered from physical and mental incapacity which meant that she was not fully employable. The husband was in good health, worked and was to continue to care for the parties’ 15-year-old son.
The property settlement between the parties left the wife with nearly $250,000 and the husband just over $166,000, approximately $46,000 of which was his superannuation.
Essentially each party wished to purchase their own property post-divorce but conceded that they would have to rent as neither of them could really manage to pay back a mortgage. The Court held that the standard of living that was reasonable for their circumstances, did not allow each party not to purchase their own property.
After carefully examining each party’s list of expenses, the Court found that the wife’s expenses exceeded her income and after the husband paid his weekly expenses, he would only be left with a surplus of $65 per week to provide for any unexpected expenses for himself and their son.
The wife was in receipt of a disability pension and, for the purposes of the Court hearing (in terms of the Family Law Act), when assessing the needs of the wife for her spousal maintenance claim, she was treated as having no income from a pension.
The Court did consider that the wife received a cash payment equivalent to 60% of the husband’s superannuation because she required cash immediately and using that cash to pay for expenses would, over time, reduce her capital available for investment but also enabled her to meet her current needs. The Court also took into account that the wife could live with her mother in a three-bedroom house. No sound reason was advanced to the Court as to why the wife chose not occupy the bedroom available to her in her mother’s house.
The Court found that although the wife was unable to support herself adequately, the husband was not reasonably able to afford to maintain his wife, therefore, the wife’s application for both periodic spousal maintenance and for lump sum spousal maintenance was dismissed.
This case highlights the ultimate financial pressure that is placed on parties post-separation and that, even though parties may ideally like to continue at a certain standard of living, the reality is that the standard of living often enjoyed during the marriage, will have to be lowered on separation. In this case, the parties had to accept that they would have to rent future accommodation as opposed to being able to buy their own properties.
Also, this case is a plain reminder to wives that even though they may have a very legitimate need for ongoing spousal maintenance, this has to be weighed up against the husband’s ability to pay such maintenance and a Court will not make an order that would equate to getting blood out of a stone.