SPOUSAL MAINTENANCE

Text : Ch 10 (Note: Identical provisions are applicable to parties to a de facto relationship under
Part VIIIAB FLA and, in WA, under Part 5A of the Family Court Act 1997 (WA))
No fault divorce changed principles of post-divorce support

Introduction
Award of spousal maintenance (“SM”) under s74 requires: (Bevan and Bevan [1995])

• A threshold decision under s72 FLA

• An exercise of discretion under s74
• S75(2) is relevant to both (future needs consideration)
• No fettering principle of pre-separation standard where means permit
• S74 discretion be guided by “reasonableness in the circumstances”

Rationale for spousal maintenance

Various ways of justifying maintenance after divorce:
• on fault/liability paradigm (no longer applied)
• recognises financial dependency created – e.g. children, homemaker role fell to 1 party
• compensate the homemaker spouse –
o Moge (Canadian – maintenance is compensation for loss of financial
opportunities);
 Best (mentioned Moge but saying maintenance is NOT compensatory
model, a threshold must be met)
o way to achieve equality between the spouses – Mitchell [1995] Bevan [1995]
Clauson [1995]
• ensuring financial cost of marriage breakdown is not borne by the community at large - e.g.
75(3) FLA court must disregard income pensions

Mitchell and Mitchell [1995] FLC 92-601; (1995) 19 Fam LR 44

The HC:
• referred to social science & economic research showing negative financial impact of
marriage breakdown on women (however this was 20 years ago…not only women
now really)
• need to take this research into account
• foregoing job & career development during marriage impacts in 2 ways: during AND
after marriage (particularly if there’s very few assets @ time of separation, or
qualifications/the job itself is now dated)
• capacity (ideally) of spousal maintenance (SM) to equalise the effect of divorce on the
parties

Incidence & use of SM

• long term payment of SM is uncommon (6% of applications – study by Behrens and
Smyth)
• -> likely reasons:
o re property division
 exhausts ability to pay
 lump sum upfront payment can generate interest

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  adjusting according to s75(2) factors (future needs) already may already
meet future needs
 superannuation splitting
o clean break principle – however Best re s81 ‘clean break’ – shouldn’t be taken
too much to heart where the threshold for liability of SM has been made out
o child support commitments
• lump sum payments more consistent with equalising & clean break (rather than
periodic payments)
• court supports periodic payments sometimes because circumstances may change in the
future (e.g. payer may fall on hard times & shouldn’t have done lump sum; payee is
going to find a new rich person straight after getting the lump sum)
– there are provisions for modification/cessation of SM payments

A. JURISDICTION
• s4(1)(c) FLA – one ‘matrimonial cause’ is for SM
o incl a void marriage 71 FLA
• provision in FLA & FCA (WA) Part 5A for defacto relationships

• s44(3) FLA - time limit for instituting proceedings = 12 months from divorce
• can be brought when marriage not separated (rare) – e.g. Stanford; however if defacto
must be breakdown of relationship

• s74 FLA - power of the Family Court to make orders &

• s75(1) FLA - In exercising the jurisdiction under section 74, the court shall take into
account only the matters referred to in subsection 75(2)(a)-(o)

• s71A FLA – exclusion of matters covered by binding financial agreement: no jurisdiction

if provision made in BFA (unless provision is unclear, for example in respect of a lump
sum SM)

B. LIABILITY FOR SPOUSAL MAINTENANCE

• *The threshold section: s72 FLA

A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is
reasonably able [capacity] to do so, if, and only if, that other party is unable to support herself or
himself adequately [need] 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).

• Criteria of liability is established by s72(1) (not existence of marriage/divorce)

• obligation depends on 2 criteria: inability to support oneself adequately & other party
reasonably able to maintain the party in need
• -> the 2 criteria are balanced against each other to make a threshold finding of
liability
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 o cf. BFA can create liability

Mitchell and Mitchell [1995] FLC 92-601; (1995) 19 Fam LR 44

• Facts: husb barrister, wife worked part time as receptionist during marriage, she
received 90%; high disparity btwn earning capacities
• TJ refused to order SM based on property settlement & also not satisfied that wife made
adequate attempts to get employment
• Full court allowed appeal re the property AND remitted the SM order to be re-heard
o re SM: not much capacity & not much jobs around

-> c.f. Clauson and Clauson [1995] FLC 81,897

• Facts:
o 9 year relationship, H considerably more assets brought into marriage
o W worked as manager of their stud farm and primary carer for 4 children (under 9
y/o)
• TJ: 40% W, no SM order as W had more $ now from the settlement she could invest – the
consideration of s75(2)(n) (property division)
• Appeal allowed, remitted for hearing re SM

Bevan and Bevan [1995] FLC 92-368; (1993) 19 Fam LR 35

Stein v Stein [2000] FLC 87,113; [2000] Fam CA 102

“Adequately”
• financial need & inability o adequately support oneself isn’t necessarily the same – In the
marriage of Murkin per Nygh J
• “adequately imports a standard of living that is reasonable in the circumstances” – In the
Marriage of Nutting per Lindenmayer J
• looks at pre-separation standard of living & the means that are available
• NO fixed standard of adequacy – doesn’t equate with subsistence (Mitchell), NOR does it
mean pre-separation level of support (Bevan)

C. CONSIDERATIONS IN MAKING SPOUSAL MAINTENANCE ORDERS

1. Statutory Factors – s 75(2)
(1) In exercising jurisdiction under section 74, the court shall take into account only
the matters referred to in subsection (2).
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties;
(b) the income, property and financial resources of each of the parties and the
physical and mental capacity of each of them for appropriate gainful
employment;
(c) whether either party has the care or control of a child of the marriage who has
not attained the age of 18 years;
(d) commitments of each of the parties that are necessary to enable the party to
support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
(f) subject to subsection (3), the eligibility of either party for a pension, allowance
or benefit under:

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 (i) any law of the Commonwealth, of a State or Territory or of another
country; or
(ii) any superannuation fund or scheme, whether the fund or
scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either
party;
(g) where the parties have separated or the marriage has been dissolved, a
standard of living that in all the circumstances is reasonable;
(h) the extent to which the payment of maintenance to the party whose
maintenance is under consideration would increase the earning capacity of that
party by enabling that party to undertake a course of education or training or
to establish himself or herself in a business or otherwise to obtain an adequate
income;
(j) the extent to which the party whose maintenance is under consideration has
contributed to the income, earning capacity, property and financial resources of
the other party;
(k) the duration of the marriage and the extent to which it has affected the earning
capacity of the party whose maintenance is under consideration;
(l) the need to protect a party who wishes to continue that party's role as a parent;
(m) if either party is cohabiting with another person—the financial circumstances
relating to the cohabitation;
(n) the terms of any order made or proposed to be made under section 79 in
relation to the property of the parties;
(na) any child support under the Child Support (Assessment) Act 1989 that a
party to the marriage has provided, is to provide, or might be liable to
provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the
case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties.
(3) In exercising its jurisdiction under section 74, a court shall disregard any
entitlement of the party whose maintenance is under consideration to an income tested
pension, allowance or benefit.

2. The ‘clean break’ principle

S81 FLA;
however, Best and Best (1993) FLC 92-418 at 80,296 – Full court said that clean break concept may
have been taken to extremes in the past and requires careful reconsideration “in light of changing
economic & social circumstances and the benefit of experience over the last decade or so”

3. Specification that orders are for maintenance

S77A FLA – orders to make payment of lump sum or transfer/settlement of property are
considered NOT to be for maintenance (s77A(2))…unless the Court specifies the amount that is
attributed to maintenance

D. TYPES OF MAINTENANCE ORDERS

S77 FLA – urgent spousal maintenance
S80 FLA – types of orders that the Court may make, including interim orders
S82 – cessation of maintenance orders – usually upon death or remarriage
S83 – variation of maintenance orders

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Courts can make orders for lump sum OR periodic payments (Vautin and Vautin [1998] FLC 92-
827)
Usually courts make orders for periodic payments, however in Clauson [1995] FLC 81,897 the
Full Court cautioned the making of lump sum awards & presented 2 propositions:
1. Lump sum orders should only be made where there are doubts as to a party’s capability or
willingness to pay
2. lump sum orders are no more than future capitalisation of a periodic order

DJM – re child support it’s not an option & it’s assessed at the level a person has the potential to
pay; c.f. SM payments