Level 1, 67 Davenport St

Southport Qld 4215

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Level 1, 67 Davenport St

Southport Qld 4215

Email Us

info@www.mcglegal.com.au

Call Us

(07) 5591 2222

woman arguingOne party to a marriage (read into this de facto) is liable to maintain the other party to the marriage if the other party is unable to support themself adequately and to the extent the first party is reasonably able to do so.

Before making any spousal maintenance orders a court must consider what property orders it will make, as the distribution of matrimonial assets may result in both parties being able to sufficiently meet their own reasonable expenses.  The main thrust of such a consideration is the `clean break’ principle – the Courts would prefer to make decisions which bring finality to financial proceedings without any ongoing financial commitments, as much as is possible under the circumstances.

Before a Court will examine the quantity of spousal maintenance required, the applicant must demonstrate that they are unable to support themself adequately from their own financial resources.  If a person chooses not to utilise a skill, which will generate income for them, then they will not be able to demonstrate to the Court that they require maintenance and the Court will dismiss their application. An applicant cannot be successful where they have not made a genuine effort to gain employment.

What is adequate depends on the circumstances of the case, adequate has been described as more than bare necessity[1], or a standard of living that is reasonable in the circumstances[2].  But, there is no requirement that the applicant’s standard of living pre-separation be maintained.

Employment qualifications do not necessarily equate to the capacity to adequately support yourself, what must also be taken into consideration is the length of time that person has been absent from the workforce and whether those absences are as a result of the party’s commitment to the children and the home[3].

In determining whether a spouse can adequately support themself the court will consider the age, health, income, property and financial resources of the parties and who has care or control of the children of the marriage, as well as other factors.

The extent to which one party is reasonably able to support the other also depends on the circumstances of the case and is relative to the overall wealth of the parties. The main argument surrounding capacity is whether it should be judged on your existing income or earning potential.

Generally, the courts have adopted the mentality that your capacity to pay spousal maintenance is judged on your existing income, except where deliberate attempts have been made to minimise your income to avoid spousal maintenance.  The current school of thought is earning potential is more relevant when considering property orders, not spousal maintenance.

In one case a husband was earning in excess of $200,000 per year as a management consultant during the marriage.  After separation he took a job as a university lecturer with a yearly income of $80,000.  At trial the Judge ruled that this was a deliberate attempt to minimise his income and he ordered spousal maintenance in the amount of $500 per week.  The original decision was overturned on appeal, as the husband produced unchallenged evidence that he only earned $250,000 because he worked in excess of 80hrs per week. Since the separation one of the children decided that he wanted to live with his father, therefore he couldn’t do 80hrs per week as a single parent, so he had to take a job which allowed him to properly parent his children[4].

For more information about the spousal maintenance services provided at our Gold Coast practice, we invite you to call our family lawyers on (07) 5591 2222 or contact us regarding a free 30-minute initial consultation.

[1] In the Marriage of Evans [1978] FLC 90-435

[2] In the Marriage of Nutting [1978] FLC 90-410

[3] Mitchell (1995) 19 Fam LR 58

[4] DJM and JLM (1998) 23 Fam LR 396