The case Blum and Blum [2019] FCCA 3346 provides an example of a husband who was ordered to pay the wife spousal maintenance after separation due to the wife’s anxiety, depression, & PTSD.
Other terms commonly used for spousal maintenance include ‘financial support’, ‘financial maintenance’, ‘spousal support’, or ‘alimony’.
Background
The Husband was 37 and the Wife was 41. They separated after 5 years of marriage and had no children. The Husband provided financial support and the Wife was the Homemaker. The Wife suffered from panic disorder, major depressive disorder and PTSD caused by long-term child sexual abuse. Her anxiety was in the severe range and her depression was in the extremely severe range according to a psychiatrist.
The Wife was earning an income of $86 per week from 3 hour of work as a Health Care Worker. She had $457 in savings. Her living expenses totaled $1,246 per week. The Husband earned an income of $6,000 - $8,000 per week and his unavoidable living expenses totaled $3,816.55 per week.
The Wife was unable to financially support herself due to her mental illness and the husband was able to financially support her.
2. The Relevant Law
- The court has the power to order spousal maintenance.1
- The process for determining spousal maintenance:46
- Firstly, the threshold:47
- A party is only required to pay the other party spousal maintenance if the first party is reasonably able to do so.2
- If the Respondent’s income is the same or less than the Respondent’s necessary expenses, then the Respondent is not required to pay spousal maintenance.3
- The party is only required to pay the other party spousal maintenance if the second party is unable to support themselves due to either of the following: (1) Having care and control of the children (under 18) to the marriage.4 (2) A physical incapacity which prevents the party from obtaining employment.5 (3) A mental incapacity which prevents the party from obtaining employment. (4) Or for any other adequate reason.6
- If the applicant’s income is equal to their expenses, then the applicant cannot receive spousal maintenance as they do not have a need.7
- A party is only required to pay the other party spousal maintenance if the first party is reasonably able to do so.2
- Secondly, the list of considerations:48
- In relation to (1) whether respondent is reasonably able to pay for spousal maintenance and (2) whether the applicant is unable to support themselves, and (3) the amount the respondent will pay the applicant, the court will consider the following:8
- The age of each of the parties.9
- The health of each of the parties.10
- The income of each of the parties.11
- The property of each of the parties.12
- The financial resources of each of the parties.13
- The physical capacity of each party to gain employment.14
- The mental capacity of each of the parties to gain employment.15
- Whether either party has the care of a child (under 18) to their marriage.16
- The commitments of each party which are required in order to support themselves, or a child, or another person.17
- The responsibilities of each party to support any other person.18
- The eligibility of each party for a pension, allowance, or benefit from any country.19
- The eligibility of each party for a pension, allowance, or benefit from a superannuation fund or scheme from any country.20
- A reasonable standard of living of each party.21
- Whether the spousal maintenance would increase their earning capacity by enabling that party to undertake education or training.22
- Whether the spousal maintenance would increase their earning capacity by enabling that party to establish themselves in a business.23
- Whether the spousal maintenance would increase their earning capacity by enabling that party to obtain an adequate income.24
- The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt.25
- The extent to which the party who is wanting spousal maintenance has contributed to the income, property and financial resources of the other party.26
- The extent to which the duration of the marriage has affected the earning capacity of the party who is wanting spousal maintenance.27
- The need to protect each party who wishes to continue their role as a parent.28
- If either party is cohabiting with another person, the financial circumstances of their cohabitation.29
- The terms of any property settlement order or proposed property settlement order in relation to (1) property, or (2) vested bankruptcy property in relation to a bankrupt party.30
- The terms of any order or declaration made or proposed to be made for de facto financial matters in relation to:31
- A party to the marriage,32 or
- Property of a party to the marriage,33 or
- Vested bankruptcy property of a party to the marriage,34 or
- A person who is a party to a de facto relationship with a party to the marriage,35 or
- Property of a person who is a party to a de facto relationship with a party to the marriage,36 or
- Vested bankruptcy property of a person who is a party to a de facto relationship with a party to the marriage.37
- Any child support to a child of the marriage that a party (1) has provided, or (2) is to provide, or (3) or might be liable to provide in the future.38
- Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.39
- The terms of any financial agreement that is binding on the parities to the marriage.40
- The terms of any de facto financial agreement that is binding on a party to the marriage.41
- The party may be required to pay spousal maintenance out of their capital or borrowings against capital assets.42
- The Court must disregard any pension, allowance, or benefit under the Commonwealth or of a state or territory or of another country.43
- Thirdly, the spouse’s standard of living before separation does not automatically set the standard for spousal maintenance post separation.44
- Fourthly, the court has discretion and the guiding principle is ‘reasonableness in the circumstances’.45
Blum & Blum [2019] FCCA 3346 (21 November 2019), [51] (Judge Morley):
“The second question is “Does the Respondent have a capacity to pay?” The test is the same – ascertain the Respondent’s income and the Respondent’s reasonably necessary and unavoidable living expenses. If the Respondent’s income is the same as or less than the Respondent’s said expenses, the Respondent does not have a capacity to pay – a ‘no’ answer – and there the matter ends. If the Respondent’s income is in excess of the Respondent’s said expenses, the Respondent has a capacity to pay – a ‘yes’ answer – one goes on to question three.”
Blum & Blum[2019] FCCA 3346 (21 November 2019), (Judge Morley):
“[49] The first question is “Does the Applicant for a spousal maintenance order have a need?” Put simply, the test is to ascertain the Applicant’s relevant income (bearing in mind section 75(3) of the Act) (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.) and the Applicant’s reasonably necessary and unavoidable living expenses. See In the Marriage of Mee & Ferguson [1986] FamCA 3; (1986) 84 FLR 179; In the Marriage of Gyselman [1991] FamCA 93; (1991) 103 FLR 156.
[50] If the Applicant’s said expenses are less than or equal to the Applicant’s relevant income, the Applicant does not have a need – a ‘no’ answer – and there the matter ends. If the Applicant’s said expenses are in excess of relevant income, the Applicant has a need – a ‘yes’ answer, one goes on to the second question.”
Blum & Blum [2019] FCCA 3346 (21 November 2019), (Judge Morley):
“[52] The third question is, of course, how much of the Respondent’s excess of income over expenses should the Court order the Respondent to pay to the Applicant to assist the Applicant with his or her excess of expenses over income.
[53] As I said, my description of the test for questions one and two is ‘put simply’. In each case, all of the relevant matters in section 75(2) of the Act, and only those matters (Family Law Act 1975 (Cth), 75(1)), must be taken into account – including any question relating to “earning capacity” of either party if asserted by the other party to be greater than the party’s income. Though section 75(2)(b) does not refer to “earning capacity” (unlike subsections 7(2)(h), (j) and (k)) it is a matter properly to be taken into account under section 75(2)(o).
Maroney & Maroney [2009] FamCAFC 45, [56] (Coleman J):
“The “capacity” to meet an order for interim spousal maintenance is not confined to income. Once a party, such as the Wife in this case, establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.”
Blum & Blum [2019] FCCA 3346 (21 November 2019), [45] (Judge Morley):
“There is no fettering principle that the pre-separation standard of living must automatically be awarded and reasonableness in the circumstances is the guiding principle: In the Marriage of Bevan (1993) 120 FLR 283.”
In the Marriage of Bevan (1993) 120 FLR 283, 290.
3. Outcomes
The Husband was ordered to pay the Wife spousal maintenance of $5,027 per month ($1,169 per week) for 17 months. The Husband was also ordered to back-pay the Wife 7 months totaling $35,189.
