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Spousal maintenance: Don’t expect to be kept in the manner to which you have been accustomed…

By November 23, 2016No Comments

By Gianna Huesch

A recent case before the Family Courts highlights the need to have realistic expectations of what a court will award you in terms of spousal maintenance.

In the case of Hackford & Hackford (court appointed pseudonyms), the husband and wife were locked in a protracted dispute including over the issue of spousal maintenance. An earlier order had been made for the husband to pay $400 per week to the wife, but the husband now sought to discharge that order, while the wife sought to increase the husband’s spousal maintenance to $1750.

While the order for spousal maintenance was ultimately rejected for a range of complex reasons, what stands out is the court’s dismissal of the wife’s expectation that her accommodation post-divorce should be at an equal standard as what she enjoyed before the divorce. The judge notes that the wife “seems to suggest the family’s current accommodation is substandard”. The wife argued her current accommodation is “far inferior” to the accommodation in which the family was living previously throughout the children’s lives.

However, the court is bound by the law to assess her spousal maintenance claim according to “reasonable standards” of living, not a “pre-separation standard of living” that should automatically apply. “Reasonableness in the circumstances” is the guiding principle. The judge points to the interpretation in the case law as:

A standard of living which is reasonable in the circumstances, including the circumstance that the parties are no longer husband and wife and that the assets and resources which were formerly available to them both in common have now been divided between them.

The Full Court also said that a court is not bound by a principle that an applicant is entitled to the same standard of living as was enjoyed prior to separation whenever the respondent is able to pay.

In this case, the judge found:

“While the current circumstances of the wife may not be to a standard that she previously enjoyed, I am not satisfied that the standard of living she enjoys is unreasonable.”

The takeaway from this case is that you must accept that even if your ex has the capacity to pay, a court will not automatically make orders for spousal maintenance that would maintain or reinstate a higher standard of living that you may have enjoyed whilst married. Instead, the court will always look at “reasonable standards”—and it may mean adjusting your expectations of the sum of spousal maintenance you may receive.

Read the case:

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


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