Interim spousal maintenance may be obtained where one party to a former marriage has financial capacity to maintain the other party and that other party has unable to support himself or herself adequately. The other party may not be able to support himself or herself by reason of having the care and control of a child of the relationship; by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason (see Section 72(1) Family law Act 1975 (Cth) (“FLA”).
However, even though grounds may exist for such a payment, unless the party having capacity to pay is willing to agree to make the payment, it will be necessary that the other party makes application to court seeking an order for interim spousal maintenance to be paid pending final orders being made for property division and/or spousal maintenance.
Recent Case Law
In the matter of Perto & Coomb  FCCA 172 before the Federal Circuit Court of Australia, the Court made orders for payment of interim spousal maintenance. That case concerned people who had extensive property, aggregating in value an amount likely exceeding some $10,000,000. However, regardless of the size of the asset pool available for division between parties, the principles relating to an application for interim spousal maintenance remain the same.
The parties had been in a relationship of some 11 years duration and the Court found that they had enjoyed a lavish lifestyle. At the time of the hearing, there were no children of the relationship requiring care.
The husband maintained that one reason why the wife should not be entitled to payment of interim spousal maintenance was the husband’s contention that the wife had not provided any evidence of any attempt by her to obtain a position of employment.
The Court noted as a fact that that the wife had not worked for at least 10 years and was unemployed at the time of the hearing. The Court found that she had no training or skills that for employment that would allow her to support herself “adequately” having regard to the period of the relationship and the manner in which the parties had lived during the relationship.
The wife in that case had some $66,000 remaining from term deposits which the wife had held from monies that the husband had given her during the relationship. The wife proposed to purchase a car with some of those monies.
The Court noted that for an interim hearing, the Court cannot make findings on contested issues but must accept what each party say as to their circumstances unless the Court can be persuaded that that party is incorrect “by cogent or persuasive evidence”.
The Court found that the wife met the threshold as a “spouse unable to support herself adequately on an interim basis”. The Court assessed the Wife’s reasonable weekly needs at $1,359 per week.
The husband was claiming that he did not have sufficient income to pay all of his weekly expenses but was reliant in order to do so on director’s loans and credit cards. However, the Court was not persuaded of the incapacity of the husband to continue to support the wife as he had always done, noting also the belated disclosure by the husband of an amount of $2,000,000 held in one of his accounts.
The Court ordered that the husband pay interim spousal maintenance on the basis as the Court had assessed the wife’s needs.