by Annemarie Lanteri, Wisewoulds
Released October 1998
PROPERTY AND SPOUSAL MAINTENANCE
The practical experience of the relationship between property settlement agreements or
orders, payment of spousal maintenance and the financial consequences of divorce in
Australia since the passage of the Family Law Act and its implementation in 1975 has been
somewhat chequered. For generations the legal reflection of the community's attitudes to
the rights and duties derived from marriage and was based upon a patriarchal archetype of
the breadwinning husband and the dependent homemaking parent/wife. The consequence of this
reflection was to ensure the possibility of ongoing payment of periodical spousal
maintenance to a dependent divorced wife, (save for wives who were guilty of a matrimonial
fault.) These payments were of course subject to the husband's capacity to pay and may
have been at a modest level in many cases but the conceptual basis of the law was that of
the obligation to provide support of dependents by the breadwinner arose from the fact of
marriage, and continued thereafter so long as need continued.
After the commencement of the Family Law Act in 1976 and with the brave hopes of a
generation which embraced a model of "equality" between the sexes, the
provisions of section 81 clearly directed the Court to achieve if possible a final and
"clean break" between the parties in relation to financial matters. This
provision obviously militates against ongoing spousal maintenance orders. The effect was
that for years after the passage of the Act spousal maintenance was sought in a very small
number of cases and ongoing orders were made even more rarely. By the early 1980's the
majority "middle class" and wealthy families financial proceedings would be
settled in the Family Court by way of an approved maintenance agreement pursuant to
section 87. The very nature of that agreement put an end to future rights and obligations
in respect of both property division and spousal maintenance. Such orders for maintenance
as were made were likely to be for a short and fixed period of time, as interim relief.
During the 1980's this change, without a commensurate change in the way in which the
major portion of the majority of families' incomes were derived and children maintained,
as a matter of fact resulted in an increasing burden on the public purse to support
divorced wives and their children who were not provided for by periodic maintenance
payments. It also resulted in a growing realisation amongst the parties to these
agreements that their financial circumstances were not in the end "equal"
despite their aspirations. Research and analysis into the effect of the Family Law Act's
maintenance and property provisions by the Australian Institute of Family Studies
highlighted this effect on wives, particularly wives with dependent children, after
divorce compared with that of their former spouses.
The amendments to the Family Law Act which came into effect in 1988 were designed to
"reprivatise" the support of families by removing the finality of the section 87
agreements in situations where a dependent spouse was unable to support themselves after
the completion of the property settlement, and by requiring the identification of the
proportion of property settlement which related to "spousal maintenance". These
provisions, linked with changes to the social security legislation, were to force the
payment of appropriate spousal maintenance or at least keep open the option to a dependent
spouse after divorce to pursue maintenance and thus to reduce the amount of pension
benefits payable even by reference to an amortised capital amount if it was encompassed in
the property agreement between spouses.
One obvious consequence of these changes was to end for the most part the use of the
Section 87 agreement as a method of finalising matters between spouses. The very fact that
this occurred highlights the degree to which the section 87 agreement had allowed the
"sweetheart" deals between husbands and wives which left one of them dependent
on the public purse to a significant extent and also highlighted the masking effect these
agreements had on the actual disparity of financial resources available to spouses.
Whether the provisions of the 1988 amendments including section 77A have achieved any
benefit to dependent spouses is more than problematic and needs further research. It has
however reduced the calls on the public purse, if we are to believe the statistics.
Perhaps not entirely coincidentally, the late 1980's and the early 1990's saw a
re-emergence of debate on the place of spousal maintenance in the settlement of matters
between spouses after divorce. Interest has revived in both the practical mechanisms by
which these issues can be addressed through the law and the philosophical underpinning of
the community's approach to dealing with the financial effect of family breakdown.
For lawyers in practice this revival may be confined to a consideration of the
circumstances in which maintenance should be sought and the quantum at which it should be
paid on a case by case basis. However it is useful in addressing those issues, to reflect
upon the concepts which are debated and the slow but sure effect that debate has on the
nature and effect of settlements and orders.
Experience in Context
Practical and conceptual issues regarding spousal maintenance have been reviewed in a
number of discussion papers and reports over the past 10 years. For example the Spousal
Maintenance Discussion Paper (Family Law Council July 1989, "The Kay Committee")
Settling tip: Property and Income Distribution on Divorce in Australia, AIFS and Prentice
hall, Sydney, 1986 and Settling Down: Pathways of Parents after Divorce, AlFS, Melbourne,
1993; Australian Law Reform Commission, Matrimonial Property, Report No 39, 1987. There
have also been a plethora of journal articles and papers presented on this topic, see for
example "Spousal Maintenance, Still Alive", Patrick Parkinson, paper delivered
at the First World Congress at Family Law and Children's Rights July 1993; "Spousal
Support and Equality - the Australian and Canadian Experience", Honourable Justice
Catherine Fraser, Australian Family Lawyer, March 1996; "The Revival of Spousal
Maintenance" Paul Brereton, David Opus Memorial Lecture 1996; and the Keynote Papers
delivered at the Seventh National Family Law Conference at Canberra October 1996 by Dr Don
Edgar, the Honourable Justice Sir Peter Singer and the Honourable Justice Susan Morgan -
any review of the literature in legal journals will produce a lengthy list of articles for
These reports indicate that there are five typical fact situations which give rise to
spousal maintenance awards in fact (however infrequent they may be in the overall
statistical picture of matrimonial property settlements). These five situations are as
1. Awards made on an urgent or interim basis particularly in comfortable to wealthy
2. Awards made to wives who are older and after a long marriage are without marketable
3. Awards made to "unemployable" wives i.e. wives who have suffered physical
or emotional disabilities whether they arose because of or independently of the marriage;
4. Wives who are custodians of young children; and
5. Awards in the form of a proportion of a property transfer designated under Section
The last of these categories should be substantially discounted as relevant to a
consideration of the reality of spousal maintenance. Although Section 77A was introduced
with a view to privatising maintenance and saving expense to the public purse, and
although it may have achieved that to some extent, it has probably not resulted in an
increase in private support or a (substantial increase) in a significant number of cases.
The designation of a proportion of property settlement to spousal maintenance is often
made to provide the financially dominant partner says the husband with some security
against a future claim for spousal maintenance being made. Whether or not a financially
appropriate adjustment has been made to a property settlement to compensate or make up the
spousal maintenance component foregone, is unknown. In fact s.77A has given the parties
another issue to argue about, and one which is usually determined (by exhaustion) in
favour of the financially dominant spouse.
The other four categories are much more clearly realistic attempts to address the of
spousal support in situations where there is a fairly obvious need which needs to be
addressed. Whether or not the amounts are realistically calculated, and whether they are
fixed for an appropriate period of time or an appropriately indefinite period of time is
another question. An entirely different issue is whether the 'needs' focus of this
approach is the only possible one, and whether there should be a wider 'compensatory' net
The Family Law Act in section 72 establishes the basic obligation of a party to a
marriage to contribute to the support of the other who needs support and section 75(2)
sets out the factors to be taken into account in relation to that obligation. Section 79
provides the factors to be taken into account in determining a property settlement.
Section 79e picks up the provisions of Section 75(2) as relevant to this determination.
One of the problems which has vexed practitioners to some extent has been where to cut
off consideration of need in assessing an overall property settlement so as to avoid a
"double dipping" effect. In simplistic terms the approach should be to determine
a fair property settlement on the Section 79 - factors and then to consider whether having
regard to that allocation between the parties, one of them needs a further having regard
to the factors of Section 75(2). if at the conclusion of adjustment of property which
takes account of both contribution and needs, there is still an ongoing need for spousal
support and the capacity to pay, then Section 72 may come into operation. In fact it is
rarely called upon in this context.
There will often be some reference in calculation made to the payment, where
appropriate, of child support and the level at which child support is paid. The use of
child support payments as an indirect spousal support is obvious in some instances and
even if parties are not attempting to avoid spousal maintenance responsibilities by
relying upon the payment of child support, the payment of child support itself may deplete
the paying partners capacity to provide further financial support to a spouse and thus may
cut off the operation of Section 72 in practice. The other major practical considerations
are the issue of desire to forgo ongoing payments in favour of a 'clean break, the risks
of non compliance and the costs of enforcement.
The papers have also noted a significant difference in the rate of applications for
maintenance and the rate of awards of maintenance between various registries of the Family
Court. There is little if any explanation for what is a statistically significant
differential and one can only fall back on speculation relating to the local culture of
the legal profession and the Judiciary and perhaps the economic circumstances applying in
the pool of people using particular registries. The statistics collected by the Kay
Committee in 1988 which included statistics from the Family Court of Western Australia,
indicated that spousal maintenance applications were dramatically higher in the Adelaide,
Brisbane and Melbourne registries, and even more noticeably spousal maintenance awards
were rarely made at all except in Brisbane and Melbourne, Even in those registries the
maintenance awards were numerically very few.
The development of renewed interest in spousal maintenance as a response to the
economic consequences of divorce thus derives largely from the experience of both
practitioners and the community of the financial circumstances of obtaining between
divorced husbands and wives. It has been fertilised by the critical reviews of the
conceptual basis of the law by academic writers. It will continue to have a stimulating
effect on the approach of practitioners to giving advice in relation to spousal
maintenance and ultimately create more pressure on courts to make awards of spousal
The philosophical debate as to the purpose of spousal maintenance and the influence
that debate has on the likelihood of an award being made and the quantum of the award is
important. There are five major grounds or purposes generally put forward to Justify a
revisitation of spousal maintenance as a real in determination of financial relationships.
1. The well entrenched view of marriage giving rise to the responsibility for provision
of support to a party who needs. This turn raises questions regarding the level of need,
whether or not a dependent spouse can support themselves "adequately" and of
course the paying spouse's relative capacity to contribute, and issues of other legal and
moral obligations and priority between dependents. It will also raise questions as to
whether the need is a long term or short term need or an indefinite need,
2. Payment of spousal maintenance as a repayment of debt arising from contributions
made by the supported spouse to the income stream (or the assets) of the family during the
course of the marriage. This will involve consideration of the level of the contribution
made and the difficulties of such calculations, the loss of income earning capacity or
resources to the dependent spouse because of those contributions and the set-offs which
might be made in respect of that spouse's enjoyment of the assets and incomes during
marriage, and prospects of rehabilitation in the workforce, remarriage etc.
3. Maintenance paid as a form of damages for a matrimonial fault. This has been
suggested as relevant in situations where the older spouse finds herself divorced while
her husband takes up a new relationship and perhaps new family responsibilities. It
involves consideration of allocating responsibility for marriage breakdown and is
unfashionable, cutting as it does across the idea of 'no fault' divorce and 'equality' of
4. Spousal maintenance for the top up to child support. Situations where young children
are involved, with the need of a parent to be available most or all of the time to care
for them, may give rise to the need for spousal maintenance to support the caring parent
at least for the duration of the child's infancy, independently of the need to provide
support specifically to meet the child's immediate needs. Obvious difficulties arise in
drawing a line between child and spouse support.
5. The privatisation of family support and the protection of the public purse. If a
family has generated and/or will generate enough wealth to maintain its own members
appropriately. Should this be taken into account in determining to ensure that that
support is provided by the family rather than the community?
There is obviously a tension between the concepts of gender neutral equality of
treatment between spouses and the realities of the economic circumstances of most families
which influences who work still do so because of their need to contribute to the outcomes.
The m majority of women family's income and standard of living, and by doing so they have
therefore demonstrated a capacity to either support themselves or contribute to their own
support. However the statistics also demonstrate that the majority of women with dependent
children fail to or are slow to recover their standard of living after marriage breakdown.
The highly paid female professional is statistically less significant than we members of a
profession may think, The reality of this gender inequality has been the triggering factor
in the revival of interest in spousal maintenance and the resurgence of legal debate
regarding its application and limitations.
There is little dispute that a clean break is desired in almost all cases by the
parties to the marriage themselves. It provides a closure and a starting point, it is an
opportunity to move from a relationship which may have resulted in fear, anxiety, violence
and at least unhappiness and to minimise contact with the other party for the future; it
provides certainty for re-establishment and growth and it avoids the label of drone and
removes the opportunity for the exercise of power over dependants.
The effect of the clean break if it is applied inappropriately Is that, despite
achieving some of these desired objectives, it compounds the structural poverty of the
unemployed, the poorly paid and the sole parent. This is because the effect of Section 81
is to generally reduce the availability of financial support to dependant spouses by
discouraging the consideration of ongoing support as appropriate, by focusing attention on
capital rather than income, even in situations where capital may not be sufficient to
provide a division of property with appropriate allocation for future support, and
focussing on equality of treatment rather than equality of outcome.
What On Earth Does All This Mean To Us?
What this means in practice will turn on the understanding and creativity of the
profession and the receptiveness of the Court, and is subject to the capacity of the
legislation to cater for the needs of the community as they are perceived and as they
change from time to time, generation to generation. The legislators have shown an almost
unhealthy willingness to amend and rewrite the Act - can this power be harassed for good
rather than evil? In other words, what is possible under the current legislation? Will it
be sought and granted (and enforced)? and should it be changed and to what end?
There have been a number of cases over the last few years where reference has been made
to the problems arising from the effect of Section 81, the "clean break"
principle, in the financial outcomes experienced by men and women. The reception by the
Family Court of Canadian and United States jurisprudence as well as the research conducted
in Australia by the Institute of Family Studies and the Family Law Council has been
positive to the extent that the reality of the situation appears to be largely recognised.
The difficulty the Court grapples with is how to translate the research and jurisprudence
into an application of the law which is within its power, just and equitable and
comprehensible to the community. The Court is to a significant degree a tool in the hands
of the legal profession. If applications for spousal maintenance are not brought awards
will not be made. At the same time the advice which practitioners will give clients
regarding their rights, entitlements, the costs of pursuing them and their likelihood of
success, depends on their perception of the Court's attitude and the expected outcome
which will be more than coloured by past experience The status quo as an impediment to
change cannot be under estimated.
Since the mid-1980's there has been a series of studies in Australia which demonstrate
the effect of the law in action. More or less simultaneously, American and Canadian
jurisprudence have also developed an increased level of awareness of the real financial
effect of divorce and separation on individuals. Although the Australian Family Law Act
was and remains a landmark in legislation, recent judicial pronouncements in Canada have
marked a watershed in the approach to the division of property and the payment of spousal
The decision of the Supreme Court of Canada in
Moge v Moge (1992) 3 SCR 813
effectively rejected the clean break notion as a governing theory of spousal support. In
her comparative description of the Australian/Canadian experience of spousal support, in
the Australian Family Lawyer the Honourable Justice Catherine Fraser, Chief Justice of
Alberta, comments that it is hard to understand how the notion of clean break assumed the
importance it did in both Canada and Australia when the promotion of self sufficiency on
which it was based (although there are other factors relevant here too) was only one of
four stated objectives under the Divorce Act of Canada and only one of 15 factors to which
the Family Law Act refers in respect of an equitable and just finalisation of the
financial relationships. The decision in Moge has been quoted repeatedly in journals and
reports as an exemplary statement of the need to readdress spousal maintenance as a method
of achieving equity between parties.
In Moge the parties have been married in the mid-1950's and separated in 1973. A
divorce was pronounced in 1980. Mr Moge was a welder and subsequently remarried. Mrs Moge
had no special skills or training and a limited education. She had been responsible for
home and child care but had undertaken some part-time cleaning work, After separation she
retained custody of the parties three children. A spousal support order was issued
following their separation which continued some 16 years. Mr Moge then applied to have the
support terminated on the basis that his former wife should have been financially
independent by that time. The Trial Judge agreed - the Manitoba Court of Appeal took the
view that the Trial Judge failed to recognise that Mrs Moge's earning potential had been
diminished by the marriage and that she was entitled to maintenance "in the interests
of true equality". The Supreme Court of Canada upheld the Manitoba Court of Appeal.
This family was not wealthy and the level of maintenance which was paid to Mrs Moge was
extremely modest. However the Supreme Court's decision was noteworthy, as the Honourable
Catherine Fraser says, for a number of reasons.
It held that judicial notice maybe taken of social facts. (See also
Mitchell (1995) FLC
The Court took judicial notice of the research demonstrating feminisation of poverty
after divorce. (See also Australian Institute of Family Studies Reports, 1986 and 1993 and
Funder, "A Proposal for Reform" in "Economic Consequences of Divorce, The
International Perspective", Oxford Clarendon Press, 1992)
The Court found that there must be an equitable sharing of the economic consequences of
marriage and its breakdown, that is both the advantages and disadvantages, and sought to
overcome the economic disadvantage accruing to a spouse who worked in the home during the
marriage rather than developing an income earning capacity. It adopted a concept of
compensatory support to ensure equality between spouses by according value to work inside
the home which freed the bread winner to pursue paid work and perhaps career development.
(See Best (1993) FLC 92-418)
The Court emphasised that self sufficiency is not of paramount significance as an
objective in determining settlement between spouses and that it had been over emphasised
given the social and financial realities of the community and economy.
The Court noted that a distinction between "traditional" and
"modern" marriages is not useful given that the social and economic reality is
that cases do not normally fall clearly into one or other of these categories. Most women
work because they have to and most women who work and who have children will also be
primarily responsible for their care.
The lengthy judgment in Moge has been variously cited in argument and
determination in the Family Court without having been discredited or disapproved.
Best (1993) FLC 92-418
The case of Best is not new given that it is now March 1997. It is interesting for a
number of reasons not least because it considers whether or not a partnership interest in
a legal practice is property within the meaning of the Family Law Act and whether it can
be assigned as part of the property settlement to the practitioner's spouse. The judgment
refers, somewhat surprisingly, to the facts as being "unusual, almost unique".
In fact it is not so unique in my experience. It was a case where the family had a small
net asset pool, the husband had a very substantial income earning capacity and the wife
did not and she had the additional ongoing care of the parties dependent children.
The parties had met when the husband was at university as a law student and the wife
was training as a nurse. During the early years of marriage the wife had actually
supported the husband to the completion of his degree and contributed financially some
time thereafter. Her family had also assisted them in their needs during these early
years. Gradually the husband built up his qualifications and experience until in the years
1989 to 1991 his income from his partnership practice ranged between $443,000.00 and
$494,000.00. In 1992 his income had dropped to $309,000.00. In the meantime the wife had
ceased outside employment, had cared for the four children of the marriage and devoted
herself to the household and the support of her husband's career.
At the end of the marriage, the negatively geared asset structure, (which had been
established to take care of the taxation problems arising from the husband's substantial
income), meant that there was little to divide between the parties. As an income stream is
not property, how was the Court to deal with the needs of the w1fe? The Trial Judge had
allocated the quite meagre property 70% to the wife. The wife appealed, The Full Court had
little difficulty, it appeared, in concluding that "the only legitimate
exercise" of the discretion available under Section 79, was so far as practicable to
transfer the whole of the available net property to the wife. In addition she was to
receive ongoing spousal maintenance. In fact the spousal and child maintenance paid by the
husband was substantial. The Court did advert to the fact that it is in ordinary
circumstances somewhat unusual to make a 100% allocation to one party but such an
allocation was justified in the case.
The ongoing maintenance issue was not a highly contentious matter before the appeal
Court although the issue of child support was in fact reviewed. The Court did however
advert to the possibility that a lump sum maintenance order can be made in appropriate
circumstances (although it was not sought in this case) and noted as follows ...
"it should be recognised that the 'clean break' concept may have been taken to
extremes in the past and requires careful reconsideration in the light of changing
economic and social circumstances and the values and benefit of experience over the past
decade or so: see, for example, the discussion in Moge's case".
The Full Court adverted to research on the "feminisation of poverty" and
cites a number of papers and reports.
Mitchell (1995) FLC 92-601
This case is also often cited on other points not under discussion here, Questions of
superannuation and the restructuring which had allowed a substantial superannuation
interest to be developed for the husband were considered, (again the husband was a member
of the legal profession) but the judgment in so as it relates to the payment of spousal
maintenance is of interest to us. The parties had married before the husband had
qualified, the wife was a nurse and she continued as the major breadwinner in the early
years of their relationship. She had two children during the course of the marriage,
ceased outside employment although continued with some secretarial work for her husband
and devoted herself to the family during the course of the marriage. After their
separation the husband's income was substantial and hers was quite modest. (Something in
the ratio of 5:1). The wife had applied for spousal maintenance as well as appealing
against the property orders. The Trial Judge had actually awarded 90% of the parties
modest property to the wife and there were some arguments regarding the actual
calculations of the value of the property which were the subject of appeal. The grounds
given for the dismissal of the wife's maintenance application by the Trial Judge was that
the quantum of the property order in the wife's favour made it inappropriate and that in
any event the Judge was not persuaded that she had properly explored her income earning
The Full Court concluded that the issue of whether or not sufficient steps had been
taken by the wife to persuade the Court that she had made proper efforts to increase her
income would need to be retried, and that the Trial Judge was wrong in concluding that the
quantum of the property would shut off the possibility or appropriateness of making
spousal maintenance award.
Again, the Full Court adverted to the:
"notorious circumstance that there is significant gap between theory and reality
for employment, especially for people in middle age, lacking experience and confidence,
and who have been out of the skilled work force for many years and in the context of the
current high unemployment".
The Court referred to the decisions of
Moge and Best and the reference in those cases
to the "feminisation of poverty" and to the numerous articles covering those
topics. The Full Court went on to pick up the issue from Moge of the application of the
doctrine of judicial notice. The Court agreed with the general propositions made in the
Canadian decision, adverted to the Australian research and applied the "background
information" so derived to the construction of the evidence on the record before
It adverted to the need to recognise and to give "realistic effect" to the
circumstances that the husband's acquisition of his professional skills and his high
earning capacity occurred during the marriage while at the same time the wife sacrificed
her professional skills for the care of the family. The Court went on to further discuss
these issues in the context of the case before it and ultimately, allowed the appeal in
relation to property and remitted for rehearing the application for spousal maintenance.
The discussion in Mitchell particularly reflects a willingness to consider the
contributions made during the marriage to the income earning capacity of the spouse with a
consequential disadvantage to the contributing spouse as relevant to the issue of spousal
The other point of relevance made in
Mitchell is the discussion of what level of
support should be regarded as "adequate" so as to cut off the operation of
section 72(2). The Court confirmed that the adequacy of self support is not to be
determined by any fixed or absolute standard but is to be related to the families standard
of living during marriage, the husband's standard of living after marriage and such other
matters as are relevant arising from section 72(2). These considerations by themselves
need to be emphasised in thinking about what standard of living separated spouses should
be enjoying (or not enjoying); a modest, perhaps subsistence level of income generated by
a divorced spouse may not be a sufficient income to cut off rights for an application for
spousal maintenance particularly in a case where the dominant spouse has a substantial
Clauson (1995) FLC 92-595
In this case, an appeal from the Family Court of Western Australia was taken to the
Full Court. The husband had at the commencement of marriage substantial assets including
pastoral properties. It was a second marriage for the husband and lasted in all about 10
years. The wife also brought in capital to the marriage although much less capital than
the husband. There were four children born during the course of the marriage and the wife
continued to have their day to day care after separation.
The case discusses both the relevance of capital introduced at the commencement of the
marriage. It also considers the approach to adopt in relation to consideration of section
75(2) factors. The wife had sought lump sum spousal maintenance but the Full Court
rejected her appeal on the grounds that having regard to the dimensions of the property
order it was not legitimate to make an order for spousal maintenance (whether periodic or
lump sum) as she would not be able to demonstrate that she was unable to support herself
adequately with the capital she received from the property settlement. The Full Court
substituted for the original property order, an amount which increased the capital
available to the wife to $700,000.00 (from $572,000.00) and it may have been that the
evidence before the Trial Judge was insufficient to found a spousal maintenance order on
appeal, but it is important to note the comments made about the case of Clauson in the
subsequent High Court appeal of Tyson. Tyson; Application for Leave to
Appeal, High Court
of Australia, February 1996 (No S82 of 1995)
In this case, the High Court rejected an application for leave to appeal but in doing
so made some comments regarding the Full Court's views of the appropriate approach to lump
sum spousal maintenance particularly expressed in Clauson. The argument before the High
Court was that the Full Court's comments expressed two general propositions; the first,
that a lump sum order should only be made where there is concern as to the capacity or
willingness of the liable party to pay and the second, that a lump sum is no more than the
future capitalisation of the periodic order.
Reference was made in argument before the High Court to the case of
Moge and to the
research on economic and financial consequences of marriage breakdown, Counsel adverted to
the situation where in many cases,
"the greatest so called asset with which one party will leave a marriage is his
earning capacity, the capacity which has typically been enhanced during the marriage but
which is not property available for distribution".
In such a case it was said a lump sum maintenance order, if it is possible may be an
appropriate remedy where adequate provision can be made to adjust the parties positions at
the end of marriage.
In rejecting the application for leave, Gaudron J delivering the decision of the
majority of the High Court said:
"there are worrying aspects to the approach adopted in Clauson and in this case
with respect to the power to award lump sum maintenance"
In another passage reference was made by the Court to the "tight" view of
lump sum maintenance expressed by the Full Court. However it was concluded that the Full
Court having found that an order could not be made to finalise proceedings and do justice
to both parties, it was unlikely that an appeal would alter the case sufficiently to
justify the grant of special leave. The implication was that if there were sufficient
resources to reallocate between parties that the marriage breakdown so as to reflect both
property entitlements and spousal maintenance entitlements on a compensatory basis, which
would finalise the relationship between the parties once and for all, then it should be
made. If that is correct then the "tightness" of the views expressed in
by the Full Court as to the circumstances in which lump sum maintenance can be ordered
must be reconsidered.
These cases taken together support the views that:
economic and social circumstances of the communities experience of the result of
marriage breakdown is relevant and available to the Court in considering what might
produce a just and equitable outcome;
that lump sum spousal maintenance should not be viewed too narrowly as an option
available to the Court and in an appropriate case might provide the basis for a
"compensatory" style order; and
the conceptual approach described in academic writings and highlighted in
Moge, has not
been rejected out of hand as either inappropriate or impossible under Australian law.
It seems clear that the existing law and its application is not incapable of adapting
to the developments made by the jurisprudential debate and the social science research of
Reaching the next watershed depends substantially upon the legal profession exploring
our preparedness to take up the invitation to plead creatively the remedies available to
our clients and build practical outcomes to meet changing needs.
The practical limitations of the law are more likely to be felt in attempting to reduce
the risks of non compliance with ongoing maintenance orders and the costs of enforcement,
but the volume of cases which confronts the Court in which spousal maintenance is sought
and pursued will itself result in changing the trend of outcomes.
One of the biggest difficulties, (other than cost and associated risks enforcement), is
that of persuading a client who has-been, dazzled by the idea of a clean break, that a
clean break may not be in their interests. The most difficult task a family lawyer faces
is trying to help a client balance the economic factors facing them against other values
of privacy, safety, independence and some degree of certainty. In the difficult times at
the end of negotiations towards property settlement or in the course of running a case,
the weight of these factors will, it seems to me, play more heavily in the minds of
parties than the economic considerations. It is only later (and sometimes years later)
that the reality of their economic circumstances and the consequence of their decisions
hits home, and who can say that a clean break is not after all the best result having
regard to those other factors. One can say however that it in most cases is unlikely to
have achieved an economically equitable result.
The possibility of legislative reform is always present. The property provisions of the
Act are under review even now. It is expected that a new Bill will be introduced for
comment within the next few months. Whether or not it is radically different from the
previous Reform Bills is unknown. The professional and academic communities along with the
public will presumably have a chance to comment in submissions. It is vitally important
for the next generation of consumers of the law and its remedies, that the experience, for
some the bitter experience, of the effect of the past is put to good use in any change.
1. 1998 - Two amendments re spousal maintenance:
Discuss these changes and their effect.
2. Discuss your approach to negotiating a Section 77A apportionment.
3. In what circumstances can a dependent spouse bring an application for spousal
maintenance after a property settlement?
4. When will leave be required?
5. When might Section 83 be useful?
6. What is the test in spousal maintenance cases? This test was recently restated by the
Full Court in Keepkie.
7. How does the Court assess the payer's ability to pay? This test was recently applied in
Curnow and DJM and JLM.