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Spousal maintenance by another name

By November 26, 2015No Comments

Can you use matrimonial funds instead of applying for regular spouse maintenance from your Ex?

A recent case looked at this issue. The case was a ‘high wealth’ case, so the facts are quite different from most Australian cases. There was an asset pool of about $200 million. The wife wanted $20,000 per month in spouse maintenance. The court took the opportunity to have a look at spending generally.

The wife used money from the matrimonial pool for personal and household expenses. She argued that this did not count as spouse maintenance. The husband argued that it did, and should therefore be governed by the laws of spousal maintenance.

The judge agreed with the wife, and allowed her to use company funds to be used for her personal and household expenses.

The judge reduced the wife’s claim to $15,000 per month, including $6,500 per month for groceries.

Had the husband been successful in his claim the monies constituted spousal maintenance, he could have fought her claim on grounds set out in the law regarding spousal maintenance. A party to a marriage or de facto relationship is liable to maintain the other party, to the extent that they are reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately for a number of stipulated reasons.

Given the highly subjective nature of the term ‘adequately’, and its varying interpretation in the courts, having the amounts viewed as ‘spousal maintenance’ might have been beneficial to the husband. In determining spousal maintenance, a court looks at the standards the partners have enjoyed pre- and post-separation, and the differences between the parties in living standards. Importantly, the court doesn’t necessary impose the same standard a partner may have enjoyed during the marriage.

Instead, in this case, the court looked at the wealth of the parties (which was over $200 million), the fact the husband conceded he had capacity to provide for the wife and the children financially; and that in the past the husband permitted the wife to incur significant personal expenses, to find that there was “no reason to be frugal now”.

Taking into account the wife’s assertion the husband had access to $700,000 in cash in his bank accounts and had bought an overseas apartment for his girlfriend, the court determined the wife should be allowed to access $15,000 a month for her personal and household expenses from company money and for each party to receive $200,000 for their legal costs.

Do you need help with a spouse maintenance claim? Has your ex cut you off from money? Please call Cristina Huesch, Accredited Specialist in family law or one of our solicitors Sharla Stevens or Angela Li at Alliance Family Law on (02) 6223 2400 today.



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