Can you obtain an order for payment of spousal maintenance? Are you at risk of such an order being made against you?
At LGM Family Law, we will seek to resolve spousal maintenance issues and your claim for final property settlement without the need for you to actually go to court. However, whether or not you are in court, it is important to understand whether you or your former partner have a valid claim for payment of spousal maintenance.
Contact our Brisbane family lawyers and family lawyers North Brisbane for free initial advice over the phone. We also provide fixed rate initial consultations. You can also read on for more information right now.
In the case of Shan & Prasad [2018] FamCAFC 12 (1 February 2018), apart from other orders made, the primary judge had also ordered the husband to pay $650 per week spousal maintenance to the wife for a period of 150 weeks.
On appeal, the full court of the Family Court of Australia found amongst other things that that order could not stand.
A party to a marriage (Party A) is liable to maintain the other party, to the extent that Party A is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2) of the Family Law Act 1975 (Cth) (FLA).
In determining whether an order for spousal maintenance should be made, the Court is required to consider the following four step process:
- Can the applicant support himself or herself adequately?
- If not, what are the applicant’s reasonable needs?
- What capacity does the respondent have to meet those needs?
- What order is reasonable having regard to s 75(2) FLA?
(Refer Saxena and Saxena [2006] FamCA 588; (2006) FLC 93-268, Coleman J)
Before there can be any liability of party to pay spousal maintenance, the applicant seeking an order for payment of spousal maintenance must first establish that he or she “is unable to support herself or himself adequately” (s 72(1)FLA).
The following items are not relevant to the question of a party’ ability to support himself or herself adequately and his or her needs:
- It is not appropriate on an adequacy test to allow a part a deduction against income for any shortfall where mortgage payments for an investment property exceed the rental income received from that investment or to take into account any other tax-related expenses attributable to that investment property. The party seeking an order for payment of spousal maintenance must distinguish expenses (such as rates and levies and any insurance expenses related to insuring a mortgage loan) attributable to the property where the party lives and those expenses attributable to an investment property.
- It is not inappropriate to include child support paid by the other party as part of the applicant’s income for the purpose of spousal maintenance. Those monies are designated for the support of children. Any shortfall that the applicant claims between the amount of child support paid by the other party and children’s actual expenses should not be included as part of the applicant’s need for maintenance for his or her own support (Stein v Stein [2000] FamCA 102; (2000) FLC 93-004).
In the case of Shan & Prasad [2018] FamCAFC 12 (1 February 2018), the Full Court of the Family Court of Australia said that it is not appropriate that the court guess at what are the reasonable expenses of a person applying for an order for payment of spousal maintenance. It is for the applicant to establish what is his or her income and the amount of his or her relevant expenses.
In that case, given that the wife had not established that she could not support herself adequately, it was not strictly necessary for the Full Court to consider the approach taken by the primary judge to the second item that must be established by the applicant seeking an order for payment of spousal maintenance, being the capacity of the other party to pay spousal maintenance. However, the Full Court said that it was useful that it did so.
The Full Court accepted that the evidence of the husband in that case as to his salary as a paediatric registrar was plausible. The primary judge had accepted the husband’s income as being an amount of $2,153 per week.
The primary judge had accepted that the husband’s weekly living costs and expenses included income tax of some $600, accommodation charges of $500, insurances of $62, child support of $313 and living expenses of $480, giving a total weekly expenditure of approximately $1,955. That figure did not take into account capital gains tax or loan repayments which the husband would have had for the loan he would need to take so that he could pay the amount he was required to pay in order to comply with the property settlement order that had been made by the primary judge.
The Full Court found that these figures showed that the husband did not have the capacity to pay any spousal maintenance.
Contact us Our Brisbane family lawyers and family lawyers North Brisbane have the knowledge and experience to assist you whether you require spousal maintenance or want to know where you stand in any claim against you for payment of spousal maintenance. We specialise in family law and can also assist you to resolve your claim for property settlement and any parenting issues that you may have upon or following separation. We also understand that the period following separation can be very difficult; we are ready to assist you to take the steps needed to finalise your family law issues so that you can get on with life.