Application for Spousal Maintenance - not required to exhaust capital to obtain an order for Spousal Maintenance


Watson & Watson often receive enquiries as to spousal maintenance and whether an application can or should be made for spousal maintenance.  Similarly we receive many enquiries as to whether a Spousal Maintenance application should be defended.  We advise in light of the facts and matters of each particular case.  We provide advice as to the costs and benefits of each available alternative as to either accepting the application, rejecting the application and/or attempting to resolve the matter on terms that are appropriate to the facts and matters.

The Family Court of Australia recently again considered the circumstances upon which the Court will make an order for payment of Spousal Maintenance or financial support by one party to a marriage to the other party to a marriage.  Similar principles apply in relation to de facto relationships.

The Court’s power to make Orders for payment of Spousal Maintenance is found in section 72 of the Family Law Act 1975.  That section provides that:

           “A party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, any only if, that other party is unable to support herself or himself adequately whether:

(a)       by reason of having the care and control of the child of the marriage who has not attained the age of 18 years;

(b)       by reason of the age or physical and mental incapacity for appropriate gainful employment; or

(c)       for any other adequate reason”.

In applying this test the Court has regard to the various matters set out in section 75(2) of the Act.

The Court looks at two threshold issues.

  1. The Court will first determine whether the person seeking an Order for payment of Spousal Maintenance has the capacity to support his or herself.  This means that the Courts will look at income of that applicant and the expenditure of that applicant and will need to see that income is less than expenditure.
  2. The second part of the test is that the Court will need to look at the financial situation of the person who has been asked to pay Spousal Maintenance and determine whether or not there is a surplus of income over expenditure.

If both limbs of the test are satisfied then the Court will make, if it considers appropriate, an Order for Spousal Maintenance.

The Application for Spousal Maintenance must be well prepared and include clear evidence of the financial situation of the Applicant.  If there is no evidence of need the application cannot succeed.

In the circumstances of the recent case before the Family Court the position was that the Applicant wife was 67 years of age, not working and in poor health.  The wife sought an order for Spousal Maintenance to be paid to her by the husband.

The husband asserted that the wife had assets within her control which could be used to support herself and that she should use these assets rather than look to him for payment of periodic Spousal Maintenance.

The husband’s financial situation disclosed that he had a very significant weekly surplus of money available to him over and above the amount required for his own support.

Her Honour found that the wife had shown a need for interim Spousal Maintenance and the Court found that the husband had the capacity to pay.

The Court observed that the Respondent to an interim Spousal Maintenance Application (namely the wife on this particular case) is not required to exhaust her capital to satisfy the test that she was unable to support themselves.

Claims for Periodic Spousal Maintenance are frequently made in both the Family Court of Australia and the Federal Circuit Court of Australia.

If you have been met with a claim for spousal maintenance or you wish to make application for spousal maintenance please contact Watson & Watson experienced Family Law Practitioners.  We have acted in many cases for either the person against whom the application has been made or the person who wishes to make the application.

The case needs to be prepared well with appropriate evidence (which is separate from a mere assertion).

One needs to also consider the cost and benefit of such an application and make or respond appropriately for the situation.  We take these matters into account in our advice to you so that you can make an appropriate informed decision as to whether you wish to defend an application, make an application or attempt to resolve the application on suitable terms.

Please telephone Richard Watson or his Personal Assistant Shereen DaGloria to discuss this important matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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