After separation there are many difficult decisions to be made.
Who will stay in the home and for how long? Who will pay the mortgage and other household expenses until the final settlement? In single income households, separation creates an immediate dilemma for the homemaker spouse; how will I support myself?
Where children are involved an application can be made for child support, but this option is not always available.
The Courts can also make orders for periodic or lump sum spousal maintenance for married and defacto couples, (provided the defactos separated after 1 March 2009). Orders can also be made for the payment of specific expenses such as a mortgage, car loan or rates until settlement.
However, an order will not be made unless two requirements are met:
- The homemaker spouse is unable to support him or herself, and
- The other spouse has the capacity to provide support.
What must be considered is whether a spouse is unable to support him or herself due to:
- Having the care of a child under 18 years, or
- Due to the spouse’s physical or mental incapacity, or
- For any other adequate reason, and
- Whether the other spouse has the capacity to pay.
In assessing a spouse’s capacity to support him or herself, the Court will consider available income except for income from a pension or benefit which must be disregarded. The Court will also consider whether the spouse has property or financial resources that could be used in the interim such as cash at bank, disposable assets like shares or insurance bond or a redraw facility on a mortgage. However, it is not necessary for a spouse to use every available cent before an order will be made and the courts will consider each case on its facts.
Even if the spouse is unemployed, the Court will also consider the claimant spouse’s ability and opportunity for employment. Does the spouse have skills or qualifications for employment and is there a job available? If periodic maintenance can assist a spouse to undertake retraining to re-enter the workforce then an order can be made for that purpose.
Where a homemaker spouse is going to be awarded property settlement at some future time, the Court can make an order for partial property settlement on an interim basis. Sometimes such orders are made to assist with the payment of legal fees but the funds can also be used to finance living expenses prior to final property settlement.
In considering the capacity of the other spouse to contribute the court will consider:
- Reasonable and Necessary expenses, and/ or
- Whether the spouse has property or financial resources that could be used to assist the other spouse’s support.
Unfortunately, few families can afford to have the same lifestyle post-separation. However, the court will consider what is reasonable for both spouses in the circumstances. If there are sufficient funds to continue the pre-separation living standard then the court will make an order that is reasonable without expecting the recipient to be frugal until settlement.
If you would like further information please contact Andrew Crooke a member of Murdoch Lawyers Family Law Team on 07 4616 9898.
Prepared by Andrew Crooke
Disclaimer: Every effort is made to ensure the accuracy of the information provided in our publications. However, information should not be used or relied upon as a substitute for legal advice.