There is a responsibility imposed on a person to financially support and maintain their former spouse or de facto partner if that person is unable to adequately meet their own cost of living from their personal income or assets.

For parties involved in property proceedings, interim Spousal Maintenance can play a crucial role in ensuring financial stability pending the final resolution of their matter.

Interim Spousal Maintenance Threshold

For the Court to make an order for Spousal Maintenance, the person seeking the maintenance must satisfy that:

a) They have a maintenance need – they cannot afford to pay for their reasonable needs and expenses from their own income or financial resources; and

b) Their former partner has the capacity to pay Spousal Maintenance.

There is no blanket rule for how the Court determines whether a person’s needs are “reasonable” as what might be considered as a reasonable expense for one person may not be reasonable for another depending on individual circumstances.

Instead, matters are determined case-by-case and the Court evaluates numerous factors such as the financial needs and resources of both parties, their earning capacities, age, health, and the standard of living parties enjoyed during and after the relationship.

Court’s approach when the party applying has savings or financial resources

The recent case of Garston & Yeo affirmed the principle that “a person seeking spousal maintenance is not necessarily obliged to resort to any capital that they might have, before they can receive the benefit of an order for spousal maintenance”.

In this matter, an appeal was brought by Mr Garston against an interim Order to pay interim Spousal Maintenance of $1,000 per week to his former partner, Mr Yeo.

Mr Yeo had approximately $115,000 in savings when the Interim Order was made.

The Court dismissed the appeal with costs noting, among other things, the trial judge considered:

a) Mr Yeo’s savings when making the interim Order; and

b) Mr Yeo’s ongoing costs including the costs of litigation and his ongoing health needs that may require him to withdraw on his savings.

Contrastingly, in Askew & Vargo the Court concluded it was not proper to make an order for interim Spousal Maintenance.

In refusing to make an order for interim Spousal Maintenance the Court:

1. Considered the Applicant’s access to capital – cash savings of $114,000, a term deposit of $300,000 and a share portfolio of approximately $113,000; and

2. Noted the capital available to meet the Applicant’s reasonable expenses could be “restored or otherwise taken into account in the final property orders”.

Conclusion

What the Court and these previous cases have illustrated is that Spousal Maintenance is a complex area of law. The Court has wide discretion and considers various factors when determining an application for Spousal Maintenance.

It is important to obtain legal advice from an experienced Family Lawyer to understand how the law may apply to your personal circumstances and what options are available when seeking or responding to a claim for Spousal Maintenance.

If you would like a personalised assessment of your circumstances, contact us on 07 5609 4933 for a free initial consultation or book online https://www.ctlawyers.com.au/booking/