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Author: Derek Legal


Derek Legal Blog

Principles for Spousal Maintenance





DNC 200 of 2020












1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. This is an application for spousal maintenance.  There was some discussion about whether the application was made pursuant to s. 77 or s. 72.  The application was listed on the basis that the applicant said it was an urgent matter but after some discussion it seemed to be the agreed position that it was properly an application under s. 72.  As neither party sought to cross-examine and appeared to be content for the matter to proceed on the papers I think the application can properly be characterised as an application for an interim order pursuant to s. 72.
3. The applicant wife is 66 years old.  There are two children in the marriage, twins who are 15 years old, who live with the mother.  The mother has a qualifications and she is also a registered health care worker.  The evidence about that was scant but it appears that, notwithstanding her qualifications, she has never worked as a health care worker, although, as I have noted, she is qualified to do so.  In fact, the wife has not worked for the past 15 or 16 years.  She presently has no income apart from child support paid by the husband in the sum of $717 a week.  She lives in the former matrimonial home with the two children, which is owned outright by the parties free of mortgage, so she is not required to pay rent or a mortgage.
4. The husband is a professional employed full time by the Employer E.  He lives in rental premises or at least in premises he does not own but his mother is either assisting him with the rent or providing the premises rent free. 
5. The wife gave no evidence of having sought any employment since the separation of the parties in about November 2019 and her counsel confirmed to me that her client had not sought any employment since then.
6. I am not satisfied that the wife does not have some capacity for gainful employment, for example some years ago she was a professional.  I think it is possible she could obtain work tutoring or mentoring, for example, in the area of her related work.  I accept however that such work may not be immediately available to her and if available may not be full time.  The wife however has been absent from paid employment for many years and I accept that appropriate gainful employment for her is unlikely to be immediately available.
7. Counsel for the wife referred to an old case, Atwell & Atwell, and said that I ought to take judicial notice that the retirement age for women was 60 years old.  Apart from that submission being factually incorrect as there are few mandatory retirement ages for employment left these days, judges being one exception, the world has changed and many people continue to work into their seventies at least.
8. It was implied that the wife was required to remain at home to look after the children however they are both at high school and they are aged 15.  I do not accept that suggestion, if it was deliberately proposed, that that was the reason for her inability to seek employment.  No other reason was offered for the wife not being able to adequately support herself.
9. In terms of section 72, I accept that her capacity for appropriate gainful employment is limited by reason of her long absence from the workforce.  I accept that, at the moment, she is unable to adequately support herself.  The husband’s liability to maintain the wife in these circumstances is limited by the requirement that it is only to the extent that he is reasonably able to do so.
10. The husband is, as I have mentioned, employed as a professional with the Employer E.  He earns $2,040 a week after tax.  He pays for membership of a professional association, health insurance and superannuation.  Those amounts are deducted from his salary and after tax he receives $1,766 a week.  He pays $717 a week in child support to the wife leaving a disposable income after that of $1,049 a week.
11. He pays for the shortfall between the rent received and the mortgage outgoings on the two investments owned by the parties amounting to a $142 week shortfall.  In addition, he pays insurance on those properties and the former matrimonial home in the sum of $100 a week in total leaving, after those payments, about $807 a week.  There are other small deductions for car insurance and registration of $28 a week in total, leaving $779 a week.
12. The husband said that his personal expenses were $365 a week.  That claim was not criticised, leaving a balance of $414 a week.  The husband said he makes credit card payments on a credit card debt of $10,640.  The payments appear to be variable but the position that was put by his counsel, which reflected what was said in the financial statement, is that he makes average payments of $180 a month, which I equate to $45 a week for the purpose of this calculation, leaving a residue of $369.
13. The husband has offered to pay the wife $200 a week.  The wife has sought $420 a week.  I was informed about those positions in open court by counsel.  I should add that I notice there has been correspondence attached to an affidavit or affidavits between solicitors which I was told contained offers.  I have not read that correspondence as I was not satisfied it was appropriate for me to read that correspondence.  I did not know the nature of it and I did not know whether that correspondence may be subject to a negotiation privilege under the Evidence Act.  In any event I have not read that correspondence and I am referring to offers that were put in open court.
14. As I have said the wife is offered $200 a week.  The wife has sought $420 a week but she has apparently reduced her claim somewhat after certain apparently exaggerated claims were challenged.  Taking into account that the husband is likely from time to time to have some unforeseen expenditure and also having regard to the fact that his personal expenditure, as set out in his financial statement, appears to be reasonably modest, I consider that he is reasonably able to pay the wife the sum of $200 a week by way of spousal maintenance.

Posted in: Derek Legal Blog at 29 June 20

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