claim spousal maintenance

Spousal Maintenance Australian example: Can I claim Spousal Maintenance (plus a wardrobe allowance)?

The 2018 case of DODT & ELEI  (see below) decided a dispute on this very issue.  This was an appeal against a spousal maintenance order. We discuss this spousal  maintenance Australian example.

Mr Elei had been ordered to pay Ms Dodt $1,450 per week and to cover her private health insurance.  The amount took into account costs to reenter the workforce including a wardrobe and car.    It was a hefty weekly bill that he did not want to pay, so he appealed but lost.

What is Spousal Maintenance?

In some countries it is called “alimony” and other countries similar names that refer to spousal financial support post separation.   It is usually paid on a weekly/monthly basis and continues either for a specific period eg; until the property settlement case is finalised OR for number of years after property settlement, allowing the payee to financially get on their feet.  Although it is rare, orders can be made for payment from one ex-spouse to the other to be ongoing for life.

These are the considerations the Court takes into account:

  1. Can the Applicant support themselves adequately?
  2. If not, what are the Applicant’s reasonable needs?
  3. Can the Respondent afford to meet those needs?
  4. What order is reasonable having regard to s90SF(3) of the Act? (numerous factors including the age and health of the parties, their income or financial resources, the care of any children they may have and responsibility to care for others, a reasonable standard of living, their eligibility for any pensions or benefits, duration of the relationship and how that impacted on their financial capacity, etc.)

Mr Elei’s positon

In March 2018 – the Judge ordered spousal maintenance of $1,000 per week based on his capacity to pay.  However, he had not made the lump sums previously ordered ($22,000 owing to Ms Dodt).

He claimed to have $3,200 per week incoming, but $5,700 per week outgoing in expenses.  He could not explain how he could afford his legal fees allegedly paid.

It was found that he had significant access to his late mother’s estate, including a $1.8mil mortgage-free property, currently rented out for $2,000 per week.

Ms Dodt’s position

By the time of the rehearing (June 2018) she had not taken any steps to re-enter the workforce. She explained that she had initially worked in hospitality, and then moved in to a managerial role in a service industry, which required a car. She did not want to return to hospitality (given her age and qualifications). She had not worked in her chosen  field for about 5 years.

In May 2018 – her father had bilateral hip replacement surgery, and she had been caring for him since.  However this was not a valid reason on its own to claim the spousal maintenance.

The Court found she did not meet requirements for 1 or 2 of the criteria. Therefore, the question was – was there any other adequate reason that the applicant could not support herself?  She was originally receiving Centerlink benefits, but this had ceased by the time of the appeal. Her savings were approximately $12,000. Her savings were largely from the spousal maintenance previously paid by the Mr Elei as ordered.

In her financial statement, she claimed weekly personal expenditure of $900. This is exclusive of rent, as she was living with her parents. It was calculated that she would need an additional $550 for a modest rental apartment.

His lawyers argued that $800 was a more realistic figure. They also argued that she could remain living with her parents, and did not need rental assistance.

Court allows maintenance to assist moving out of parents home, and re-entering workforce

As this was a request for interim maintenance, the Court decided that Ms Dodt “should have the opportunity to pursue employment in her chosen field, which reflects her qualifications and experiences and in the long term maximises her earning capacity.” In other words,  she does not need to return to hospitality for income. The court found that in order for her to return to her ‘chosen field’ (as a manager in the service industry) she required certification, a business wardrobe and a reliable car. The judge was critical that she had ample time to become certified, and had not. This was not an adequate reason for being unable to support herself.

However, she had only recently been able to buy a business wardrobe and did not yet have a car, which meant she could not return to her chosen field. Therefore, there were adequate reasons why she was unable to support herself.

The Court agreed that $800 was appropriate, but disagreed that she should remain with her parents. She had been living independently for many years, and was entitled to continue to do so.  Accordingly more weekly funds would be required to meet those needs.

Interim Orders were made for Spousal maintenance of $1,350 per week ($800 plus $550 rent) to be paid by Mr Elei to Ms Dodt.

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