FEBRUARY 2018 Part Company: Spousal Maintenance under the Australian Family Law Act Geoff Wilson Author details Geoff Wilson Partner Accredited Family Law Specialist Fellow of IAFL P +61 7 3024 0360 E [email protected] Part Company: Spousal Maintenance under the Australian Family Law Act c. Unless both of these conditions 2. The liability of a party to a marriage Background are satisfied there is no maintenance to maintain the other party that is liability between spouses (Budding imposed by sections 72(1) / 90SF(1) is [2009] FamCAFC 165) crystalized by the making of an order The “clean break” principle to spousal under section 74(1) / 90SE(1) which maintenance is ensconced in sections As to “adequate support” refer to provides: 81 and 90ST of the Family Law Act Brown (2007) FLC ¶93-316; Bevan 1975 (Commonwealth of Australia) (1995) FLC ¶92-600; Nutting (1978) FLC “In proceedings with respect to the which provides: ¶90-410 and the following: maintenance of a party to a marriage / [After the breakdown of a de facto “the court shall, as far as practicable, a. There is no fettering principle that relationship], the court may make such make such orders as will finally pre-separation standard of living must order as it considers proper for the determine the financial relationships automatically be awarded where the provision of maintenance in accordance between the parties to the marriage respondent’s means permit it (Bevan); with this Part.” and avoid further proceedings b. The word ‘adequately’ is not to between them.” be determined according to any fixed 3. A court exercising the power or absolute standard but having regard conferred by section 74(1) / 90SE(1) The current approach to spousal to the matters referred to in sec 75(2) is obliged by section 75(2) / 90SF(3) maintenance in Australia was held by the (Mitchell (1995) FLC ¶92-601); to take into account the matters High Court of Australia in Hall and Hall referred to in section 75(2) / 90SF(3) c. The idea that ‘adequate’ means (2016) FLC ¶93-709 [2016] HCA 23 at [3]- and only those matters. Those matters a subsistence level has been firmly [5] to be as follows: are presented as a comprehensive rejected and should pay proper regard checklist or shopping list. Some of the to the factors set out in section 75(2) 1. The gateway to the operation of Part factors listed include: VIII (for marriages) and Part VIIIAB (for (Budding [2009] FamCAFC 165); de facto relationships) of the Family d. Where possible both spouses ““(a) the age and state of health of each Law Act in relation to spousal should continue to live after separation of the parties; and at the level which they previously maintenance is section 72(1) (for (b) the income, property and financial enjoyed if this is reasonable, although marriages) and section 90SF(1) (for de resources of each of the parties and the parties’ standard of living may have facto relationships) of the Family Law the physical and mental capacity of to be lower if financial resources are Act which provides: each of them for appropriate gainful insufficient to maintain that standard; employment; and “A party to a marriage is liable to e. In some circumstances it may (g) where the parties have separated or maintain the other party, to the be reasonable for the parties to live divorced, a standard of living that in all extent that the first-mentioned at a higher standard than previously the circumstances is reasonable; and party is reasonably able to do so, enjoyed; (h) the extent to which the payment if, and only if, that other party is f. It is not necessary for an of maintenance to the party whose unable to support herself or himself applicant for spousal maintenance to maintenance is under consideration adequately whether: use up all capital in order to satisfy would increase the earning capacity the requirement of adequate support. of that party by enabling that party a. by reason of having the care and Where the line is drawn depends on the to undertake a course of education control of a child of the marriage who circumstances of the case (Mitchell); has not attained the age of 18 years; or training or to establish himself or g. An applicant is not entitled to b. by reason of age or physical herself in a business or otherwise to live at a level of considerable luxury obtain an adequate income; and or mental incapacity for appropriate or comfort merely because the other (k) the duration of the marriage and gainful employment; or party is very wealthy (Brady (1978) the extent to which it has affected the c. for any other adequate reason; FLC ¶90–513) and there is no general earning capacity of the party whose rule that the pre-separation standard maintenance is under consideration; having regard to any relevant matter of living should be maintained simply [Note Nygh J in Hirst & Rosen (1982) referred to in subsection 75(2).” because the other spouse can afford to FLC ¶91-230 held: “It is not the impact do so: (Bevan) This requires a threshold finding of: of the celebration of the marriage by itself, but the erosion which the The respondent’s capacity to pay duration of the marriage has upon the a. The applicant having a spousal maintenance is not assessed earning capacity which is referred to”] maintenance need (their reasonable merely on income, but also on property, needs and expenses exceed their financial resources and earning (n) the terms of any order made or income and earning capacity); and capacity and “an order may be made proposed to be made under section 79 b. The respondent having the notwithstanding that the liable spouse in relation to: capacity to pay (their income, earning could only satisfy the order out of (i) the property of the parties; capacity or resources exceed their capital or borrowings against capital (o) any fact or circumstance which, in reasonable needs and expenses) assets”: (Maroney [2009] FamCAFC 45). the opinion of the court, the justice HOPGOODGANIM LAWYERS 2 Part Company: Spousal Maintenance under the Australian Family Law Act of the case requires to be taken into (Harris (1978) FLC ¶90-454; Molier & determine any outstanding property account; and Van Wyk (1980) FLC ¶90-911. settlement (Clauson (1995) FLC ¶92- (p) the terms of any financial agreement 5. Lump sum orders (Vautin (1998) FLC 595; Figgins (2002) FLC ¶93-122) that is binding..” ¶92-827; Tyson v Tyson (1996) 70 ALJR and child support review (Massoud 285; (1996) HCATrans 55 where McHugh (2016) FLC ¶93-68) before making These factors affect the quantum of J pondered: “Why can one not say, maintenance orders. Maintenance a maintenance order. As Professor ‘Your present requirements are that was referred to as the fifth step in the Chisholm notes, many of the factors you need a lump sum now to pay off property settlement exercise. Sections listed express a policy or objective of these pressing debts which are due and 75(2)(n) and 90SF(3)(n) required the spousal maintenance law and “The immediately payable, but in terms of Court to take account of any property Act does not indicate the relative ordinary living you only need X dollars order. The clean break principles are importance of the various factors, a week’? Why does that not satisfy also supported by sections 44(3) and nor does it include any rule for section 72?”; Brown (2007) FLC ¶93-316 (5). The court also takes into account choosing between different policies in where the Full Court ordered a lump the parties’ property and resources in a particular case. ^ For this reason, sum maintenance payment of $2.25m. addition to their income and earning capacity. Whilst a party may have a spousal maintenance law might be 6. Discharge, suspension, revival need due to lack of income, the court characterised as “incoherent”.^” or variation of spousal maintenance may find they have sufficient property Notably for the purposes of this article, orders under Sections 83 and 90SI(1): which if properly invested could earn these factors import other approaches (Atkins & Hunt (2016) FLC ¶93-746, sufficient income to support them to maintenance beside the clean break there must be “in force an order”). and needs and capacity approaches without the need for maintenance and thereby decline to make an order; that have been predominantly the Australia is a party to a number approach of the Australian Courts and of international conventions and 3. There is an obligation on the practitioners. agreements regulating the recognition recipient of spousal maintenance and enforcement of maintenance to exercise that person’s capacity to The High Court has essentially followed obligations. [Agreement between earn an income and to mitigate their the long standing clean break and need the Government of Australia and the maintenance need (Taguchi (1987) FLC and capacity approaches of the Courts to Government of New Zealand on Child ¶91-836; Gyopar (1986) FLC ¶91-769); spousal maintenance in Australia. and Spousal Maintenance; The Hague 4. The maintenance component of a Convention on the Recognition and property settlement with regard to Parties to a marriage can seek Enforcement of Decisions Relating to sections 75(2) and 90SF(3) is not to be maintenance at any time during the Maintenance Obligations (see section 111A confused with spousal maintenance marriage (Eliades (1981) FLC ¶91-022) and of the Family Law Act); The Agreement (see Anast and Anastopoulos (1982) post separation until 12 months after a between the Government of Australia FLC ¶91-201).