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Be careful how you talk about your ex in court

By July 23, 2019November 9th, 2021No Comments

How you characterise your ex during your divorce proceedings can definitely come back to haunt you. In the matter pseudonymised as Smyllie & Smyllie in the family court at Sydney, Justice Loughnan heard a former husband’s application to vary spousal maintenance orders in early stage property proceedings concerning interim financial relief.

The ex-husband sought to prove that he couldn’t adequately support himself, while the wife asserted that his contributions throughout their long marriage, financial and otherwise, had been less than hers during the marriage and that therefore he was entitled to less of the asset pool.

Section 72 of the Family Law Act 1975 deals with spousal maintenance. The law provides that if one spouse can’t adequately support themselves, “the other party can be called on to provide that support to a reasonable extent”. Successful applications for spousal maintenance need to show both that an applicant has a demonstrable need for funds and can’t support themselves, and secondly that a respondent has the capacity to pay.

In this case, although there remained some doubts over the husband’s full and frank financial disclosure, the court was ultimately persuaded that he couldn’t support himself. His only income was through working in the family business, in which the wife said he had not played an active role in years, and that regardless it was winding up. Although the husband had superannuation and would receive a capital sum, the court noted that there is no requirement that parties have to exhaust their capital to assist their living needs.

Turning to the wife’s capacity to pay, the court noted that although she had no cash resources, she had significant other financial resources. The court suggested the wife could rearrange her property portfolio or draw on an existing facility she had. The fact remained that there was a significant difference between the wife’s and the husband’s financial circumstances at present.

The court ruled that the wife have exclusive occupancy of the former family home and that the husband find rental accommodation elsewhere. In the circumstances, where the husband was able to demonstrate that he could not adequately support himself, the wife was directed to pay him a lump sum as well as periodic (weekly) spousal maintenance, as well as make funds available to him to purchase a car.

During the hearing, the judge reminded the wife of how she herself had acknowledged the husband’s low capacity for employment:

“It seems to me that the husband has demonstrated for the time being that he cannot adequately support himself from his own resources. He is aided in that argument by the wife’s criticisms of him in relation to the business and otherwise. The wife says that he did not have a very significant role in the business. She is also critical of his conduct, critical of the way in which he made his contribution to the family in the broader sense….In my view the wife makes a reasonable case that the husband is not a good proposition for remunerative employment.”

The Judge said the wife must concede that it was her extensive financial support during the husband’s incarceration, including paying his legal fees, which actually demonstrated that he had no other means to support himself than his wife.

The upshot is, you have to walk a fine line when it comes to how you portray your marriage and your ex to a court. Saying your ex was essentially unemployable might mean the court takes your judgment into account when determining your ex’s capacity to support themselves.

If you want to know more about this case, you can read it here.

Do you need assistance with a divorce or other family law matter? Please contact Canberra lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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