The threshold test in spousal maintenance

Recently I had cause to revisit the issue of the threshold issue in spousal maintenance. 

The matter was looked at by the Full Family Court in the case of McCrossen and McCrossen [2006] FamCA 868.

A wife who wanted to become a teacher failed in her bid for spousal maintenance because the court found she could support herself by using her existing skills.

The wife had been out of the workforce since 1996, but had last worked as a section head in the public service. The wife gave evidence that she wished to be retrained as a teacher rather than return to her former occupation. Expert evidence was given on behalf of the husband that she could get a job in the public service on a higher salary than she would receive after retraining as a teacher.

The Court held that the Family Law Act requires that a party establish that they are unable to support themself, not that they are unable to support themself in a particular endeavour as opposed to another which may be available to them. Accordingly the wife did not satisfy the threshold test for eligibility for spousal maintenance.

This case has very practical implications for a party seeking support from the other after separation.

Spousal Maintenance

Under the Family Law Act, a person has a responsibility to assist his or her former spouse or de facto partner financially if that other person can't meet his or her reasonable financial needs from their own income or assets.

Where an entitlement can be established, maintenance enables an adjustment to be made in favour of one or other party for any disparity that may exist between the income or the earning capacity of the parties based on their individual financial needs.

The Family Court and the Federal Magistrates Court are able to deal with spousal maintenance applications and parties can also reach an agreement on maintenance arrangements at mediation.You should try to resolve the dispute before going to court if at all possible as this will involve a saving not only financially but in terms of emotional stress.

Maintenance is not automatically awarded however and time limits apply, so it is best to seek legal advice.Your lawyer will be able to explain the circumstances in which you may be entitled to spouse maintenance and point out the various options for seeking a resolution.If you are the party from whom payment is sought, then your lawyer can explain the limits on your liability based on your capacity to pay. In selecting a mediator, you should ensure that your lawyer is able to come with you to mediation should you so desire as important legal issues are involved.

Mike Emerson Co-principal Brisbane Mediations.