Question
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11 January 2019

One for the money

Family Law
Federal

Asked

Family law - Negotiating interim spousal support during property settlements

We are acting for a husband in a family law matter. The parties separated recently. Currently, the parties are in the process of making financial disclosure to determine their rights for a division of their matrimonial home. Neither party has yet filed an application with the court.

The wife is the primary carer of their only young child. They both live in the matrimonial home, which is not mortgaged. The husband pays for all costs relating to the home.

The husband is employed full time with an annual salary of $90,000. He pays $300 per week in child support and $600 per week renting an apartment suitable for their child.

The wife has requested that our client pay spousal maintenance of $350 per week. Does the husband have to pay this whilst the matter is negotiated by the parties and/or during court proceedings? Is spousal maintenance compulsory? If so, how can it be fairly determined?

Answered

Thank you for the question.

Spousal maintenance is not compulsory. It is assessed with reference to one party’s needs and the other party’s capacity. 

Even if one party has a need for support, if the other party does not have extra money available after meeting reasonable expenses, then there will be no order for maintenance.

The easiest way to assess whether the client has the capacity to pay any more maintenance is for him to complete a financial statement, including all his current income and expenses. If he is earning $90,000 per annum gross and paying rent of $600 per week with child support of $300 per week, then he is already spending $46,800 per year on those two expenses, let alone what he is paying for the former matrimonial home. If, for example, he is spending another $200 per week on the family expenses, $57,200 per annum has already been spent, not including his own day to day expenses plus the expenses when the child is spending time with him. 

Assuming the client’s financial statement establishes that he does not have the ability to pay the maintenance that the wife is requesting, then MENTOR suggests the client swear the financial statement, and a copy of it be provided to the other side, advising that the client has no capacity to pay maintenance. If the exercise establishes that the client does have extra funds, then it would be appropriate to make an offer for interim maintenance.

It may also be appropriate to request a financial statement from the wife’s lawyers in order to assess her need for maintenance. Even if it can be established that the wife has a need for maintenance, depending on the circumstances, it could be argued that the wife could attempt to find part-time work to contribute to her expenses.

Given the quantum involved, it would be best to attempt to negotiate a solution to this interim issue, which can also create goodwill for the resolution of the matter overall.

For more information refer to the By Lawyers Property Settlement guide.

Regards

Mentor