MCG Legal    Blog    Spousal Maintenance

One 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

Recent Articles

3 Key Issues Businesses Need to be Aware of in 2019

2019 is shaping up to be a pivotal year for businesses. With the decreasing Australian dollar, a slowdown in overall growth and questions over property prices there is no doubt that business leaders need to be on top of all the changes. This includes the upcoming NSW and Federal elections. We’...

Read More

How to Help Your Child Through Your Divorce

Divorce is never easy and occasionally, children can get lost in the process. Parents may end up getting preoccupied with property and financial division, forgetting to check in on their children’s emotional and physical well-being during the process. We recommend all parents focus on ‘what...

Read More

Understanding the Separation Process

As a leading family law practice on the Gold Coast, we know just how difficult the divorce process can be for our clients. When a relationship breaks down, understanding the process will help you to navigate the various stages. At MCG Legal, we have actually been through it ourselves, so have the pe...

Read More

What if You're a Stay-at-Home Mum and Getting Divorced?

It is a sad fact that not all relationships last. For many couples, the assets they accumulate during their relationship represent their entire life’s savings. So you might be asking: is there any position more disadvantageous than that of the stay-at-home mum? Well, don’t despair – th...

Read More

The Best Co-Working Spaces on the Gold Coast

In recent years, the Gold Coast has become an entrepreneurial hub. As any entrepreneur would know, the flexibility associated with working for yourself is much better than the 9-5 grind of being chained to a desk. However, with freedom comes procrastination. Fortunately, there are plenty of great co...

Read More

Professional meet-ups on the Gold Coast

If you believe the old adage “it’s not what you know but who you know” then you will appreciate the importance of meeting like minded people. Professional meetups have been around for quite some time, and people know of them as an excellent way to meet new people with similar interests. Howeve...

Read More

Tips to Remember When Purchasing a New Home

Purchasing property is often the most significant purchases you will ever make. It’s a complex process requiring many decisions. However, there is no need to panic! We help property buyers and sellers on the Gold Coast and throughout Queensland with this process all the time. The following ar...

Read More

Our Top Australia Day Activities

You can’t beat Australia day on the Gold Coast! Cold drinks, great surf and raucous backyard parties. It doesn’t matter where you turn, you’re in for a good time. If you need some fresh ideas on how to spend your Australia day, check out some of our favourite ways to celebrate Aus...

Read More

Nick's Story

Last month we gave you an insight into MCG Legal’s Principal and founder Matt Gill. This month we’re throwing the spotlight on Nick Harrison! Nick arrived at MCG Legal with a unique blend of theoretical and ‘real life’ experience. Before becoming a lawyer, Nick served the community for appr...

Read More

Everything you need to know about DNA & Paternity testing

In Australia, it is estimated that more than 10,000 people each year sign up to find out whether their child is, in fact, biologically theirs. While that number seems large, it isn’t compared to places like the United States, where there are about five times as many paternity tests per head as...

Read More

Updates On E-conveyancing in NSW

Times are changing, and technology is playing a more pivotal role in conveyancing and the property services industry as a whole. As a Gold Coast law firm that helps clients with conveyancing and property work, we wanted to highlight to all our clients in NSW the changes that have recently been made ...

Read More

Why You Need a Strong Advocate on Your Side

Having a strong advocate on your side is critical. In this piece we dive into why it is so important to get you the best possible outcome. You don’t want a piecemeal lawyer who can’t tell you directly what they believe your best course of action. Having clear advice helps put on the path...

Read More