Fl 4 Spousal Maintenance

Table of Contents

Fl 4 Spousal Maintenance 1

Summary of exam format 1

1 Instituted proceedings for SM in time? S 44(3) FLA (Richardson) 2

2 Threshold consideration in s 72(1) FLA (Patterson ; Mitchell; Soblusky ) 4

3 Court’s power under s 74 FLA 6

4 Considerations for Court under s 75(2) FLA 6

S 75(2)(e): Priorities issue > Responsibilities of person to support other: Axtell 8

S 75(2)(f), subject to s 75(3), connection between the system of private support and public support 8

S 75(2)(o) justice 8

Case briefs 9

Patterson 9

SM: Appendix – statutory provisions 10

S 44(3) leave 10

72 Right of spouse to maintenance 11

75 Matters to be taken into consideration in relation to spousal maintenance 11

S 80 General powers of court 14

S 82 Cessation of spousal maintenance orders 15

S 83 Modification of spousal maintenance orders 16

Pages 14-3 Richardson, Bevan, Mitchell, Soblusky, Steinmetz Axtell

Introductory provisions:

• Note: Part VIII containing s 72 FLA does not apply to:

  • Financial matters to which a financial agreement that is binding on the parties to the agreement apples (s 71A(1)(a)) or financial resources (s 71A(1)(b)).

• Definition of ‘matrimonial cause:

  • Proceedings between the parties to a marriage with respect to maintenance of one of the parties to the marriage: s 4(1)(c) or

  • Proceedings between: (i) a party to a marriage; and (ii) the bankruptcy trustee of a bankrupt party to the marriage; with respect to the maintenance of the first-mentioned party: s 4(1)(caa).

Summary of exam format

1. Time of instituting proceedings?

   1. Within 12 months of the taking effect of the divorce order: s 44(3) FLA OR

   2. Leave can be granted under s 44(3) or (3A) if court is satisfied of matters in s 44(4) and exercises discretion: s 44(4).

2. Threshold consideration of right under s 72 FLA?

3. Court has power under s 74 FLA

4. Court must consider s 75(2)

3 in depth – 5 issues about spousal maintenance:

1. For what needs can you claim spousal maintenance? Do those needs have to arise out of the marriage or are they needs in a more general sense?

   1. Read through s 75(2)

   2. Ie do those needs have to arise directly.

2. what types of excuses are relevant in limiting one’s liability to pay the spousal maintenance?

3. To what extent are arguments about conduct or fault relevant in financial proceedings?

   1. See soblusky, and steinmetz.

   2. Note that in s 75(2) there is no reference to ‘conduct’

   3. Note s 75(2)(o) “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.

   4. Note: everything in s 75(2) has a significance for dividing up the property in addition to spousal maintenance.

4. Competing priorities?

   1. What do you do when there isn’t enough money to go around? (eg Patterson).

      1. Someone may say that a party cannot pay because they have to look after ill parents. Or party needs more maintenance because they have to look after their parents. So is there any system for priorities to deal with this?

      2. Note s 75(2)(d).

         1. But s 75(2)(d)(ii) ‘duty’ refers to LEGAL duty. Not a moral or ethical duty. Probably doesn’t matter because

         2. S 75(2)(e) ‘the responsibilities of either party to support any other person’ this must be taken into account by Court in relation to spousal maintenance.

5. What is the connection between the system of private support (eg spousal maintenance) and the system of public support (government social security)

   1. Can the husband say if required to pay maintenances – that the W should go on the pension. Let H do what H wants to do.

1 Instituted proceedings for SM in time? S 44(3) FLA (Richardson)

• First issue to consider: whether W or H institutes proceedings against spouse for property settlement and spousal maintenance orders within 12 months after the date on which the divorce order took effect: s 44(3) FLA

• Proceedings between parties to a marriage with respect to maintenance of parties to the marriage (para (c) definition of matrimonial cause in s 4(1) FLA) cannot be instituted 12 months after a divorce order has taken effect: s 44(3) – except by leave of the court.

• Leave can only be granted under s 44(3) or (3A) if the court is satisfied under s 44(4) that:

1. that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or

2. in the case of proceedings in relation to the maintenance of a party to a marriage—that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.

Principles

• Regard for following factors:

  • Length of delay: Richardson

  • Adequacy of explanation for delay: Richardson

  • Prejudice occasioned to R by reason of delay: Richardson

  • strengths of applicant’s case: Richardson

  • degree of hardship that would be suffered unless leave is granted: Richardson

  • from Richardson – where there is an absent of any property at the time when proceedings should have been instituted, this does not as a matter of law preclude the grant of leave under s 44(3) to institute proceedings at a subsequent time when some property has become available for distribution between the parties: Richardson. However discretion to grant leave should be exercised with great care.

• Rationale for provision: Power should be exercised liberally in order to avoid hardship but in a manner that does not render nugatory the requirement for proceedings to be instituted within 12 months: Whitford; Richardson

• In circumstances where it is an application for leave under s 44(3)

Principles for when appealing discretionary decisions:

• Must show that trial judge ignored relevance evidence or misunderstand or misapplied a legal principle: Richardson, citing House v King. Not that individual judges on appeal would have reached a different outcome.

Case:

• Richardson. Here there were multiple...

Buy the full version of these notes or essay plans and more in our Family Law Notes.