Interim Spousal Maintenance Obtained for Wife in addition to Property Adjustments

30/12/2014

Jenny approached Watson & Watson for advice on spousal maintenance following separation from Ross whom she had been married to for 20 years.  Watson & Watson were able to negotiate an interim spousal regime so that Jenny had sufficient funds to live on pending resolution of the property issues.  Jenny remained in the former matrimonial home with the 3 children. 

Ross and Jenny had been married for 20 years. Ross and Jenny have separated.  Ross runs his own business.  Jenny has not worked for many years and left her job in the bank to start a family.  One of the children had started university but the two youngest are still at school.

Initially the negotiation in relation to the interim spousal maintenance in favour of Jenny was for a limited period until the property issues were resolved by an agreement, between Ross and Jenny through their lawyers or if there was no agreement, by Court Judgment and Order.

Spousal Maintenance is separate from Child Support which is payable

Ross had suggested that there be a 50/50 division of property.  Jenny is concerned that even with half of the assets that they have she will not have enough money to rehouse herself and the children and support herself.  Jenny wants to return to the workforce but has no skills and finding a job will be difficult. 

Jenny sought initial advice from Richard Watson and thereafter Dennis Grant Senior Family Law Solicitor of Watson & Watson in relation to the difficulties that she found herself in and what was the processes and likely outcomes. 

The initial position was that Jenny remained in the former matrimonial home with the 3 children and received adequate funds to cover her needs on an interim basis pending resolution of the property matter.  Watson & Watson advised Jenny in relation to the division of the property between Jenny and Ross following the breakdown of their marriage. 

The marriage between Ross and Jenny had been a long marriage and generally speaking, the Court would be expecting there to be a 50/50 division of property.  Jenny was advised that because of the disadvantages of her position that she should seek to obtain a greater than 50% share of the assets.  Jenny had not worked for many years because she looked after the children.  Jenny needed money and time to retrain so she could re-enter the workforce.

In addition to the matters concerning property adjustment, Watson & Watson considered the possibility of obtaining a periodic spousal maintenance for a period following the determination of the matter by the Court if the case could not be settled.  

The Court in determining how to divide property must consider what (if any) adjustments are made in favour of a party and consider all matters (other than why the parties separate).  The Court will look at:

  • The age and state of health of the parties; and
  • The income, property and financial resources of each of the parties and their capacity for gainful employment;
  • Whether either party has the care and control of the child who is under the age of 18 yeras.
  • The commitments of a person that are necessary to enable that person to support themselves or a child or some other person.
  • Eligibility for a pension allowance or benefit from the Government.
  • Their standard of living.
  • The extent to which payment of maintenance would increase the earning capacity of the person, by enabling that person to undertake a course of education or training so as to establish themselves in a business or otherwise earn an income.
  • The length of the marriage.

 

In this case the Court ordered that there would be periodic spousal maintenance following the property settlement.  Jenny obtained an adjustment in her favour in the property settlement and also obtained an order for specific periodic spousal maintenance for one year.

Interim Spousal Maintenance

The Court has power to make an order on an urgent basis that one party to a marriage or a de facto relationship provides immediate financial assistance to the other.  This could be by way of a lump sum payment or a periodic payment, such as weekly or monthly payments.

The considerations to be taken into account in relation to interim or urgent spousal maintenance are such that the Court will consider the capacity of each party to maintain themselves and each other in particular, pending the determination of the property matters.

The test for ordinary payment of periodic spousal maintenance is twofold.  If the person that is to pay the maintenance has a surplus income over their reasonable needs and expenses then there is a capacity for that person to pay spousal maintenance.  If the person in need of maintenance has a shortfall of income over their reasonable expenditure then there is a need and the Court could grant an order for spousal maintenance, particularly on an interim urgent basis.  The Court also will consider what assets other than income such as savings are available for spousal maintenance in particular on an urgent interim basis. 

If a claim is made against you for spousal maintenance or you have a need for spousal maintenance please contact our senior family law solicitors Richard Watson or Dennis Grant of Watson & Watson to discuss your needs, the processes of the Court, the requirements and the likely outcome.

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