What happens to spousal maintenance if a party can support themselves?

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In the recent decision of Hall v Hall [1] the High Court upheld a decision of the Full Court of the Family Court of Australia and held that an order to discharge an interim spousal maintenance order was justified.   The High Court by a majority held that the Full Court had correctly come to the conclusion as just cause had been shown for the discharge of the interim spousal maintenance order.

Under the Family Law Act 1975, the party to a relationship is liable to maintain their spouse, in so far as  that party is reasonably able to do so, if their spouse is unable to support herself or himself adequately.  In this case the appellant wife and the respondent husband were separated.  The wife had issued proceedings against the husband in the Family Court seeking an interim spousal maintenance order. Her financial circumstances showed she  owned two luxury cars bought for her by her brothers and an ‘Interest’, the value of which she was unaware, in the estate of her deceased father that related to a family business started by him but now run by her brothers.  In the absence of information about the nature and extent of her interest, the trial judge did not take the family business into account as a financial resource of the wife.  The trial judge made an interim spousal maintenance order against the husband.

The husband applied for a discharge of that order. He relied on new evidence of the father’s testamentary wishes that, first the wife should receive from the family business a lump sum cash payment of $16,500,000 in the event of her divorce from her husband and second, that the wife should receive from the business an annual payment of $150,000 until the date if any the lump sum payment was made to her.  The wife stated to the court that she had not received any income or capital payment from the father’s estate but did not state whether she had requested payment from the family business.  The trial judge dismissed the husband’s application for discharge.

On appeal, the Full Court of the Family Court found that the trial judge had made a mistake in failing to consider and make any finding as to whether there was sufficient new evidence to discharge the interim spousal maintenance order.  Although the Full Court accepted that the making of the annual payment from the business would have been voluntary, it found that the wife would have received the annual payment had she requested it from her brothers.  The Full Court also held that ‘just cause’ had been shown for the discharge of the interim spousal maintenance order because, on the evidence before it, the wife was able to support herself adequately.

The wife sought special leave and appealed to the High Court. The High Court by a majority held that the Full Court’s finding that the wife would have received the annual payment had she requested it (from her brothers) was open on the evidence before it.  On that finding, the annual payment was both a ‘financial resource’ under section 75(2)(b) of the Act and a fact or circumstance which in the opinion of the Court, the justice of the case requires to be taken in to account under section 75(2)(o) of the Act, relevant to whether the wife was able to support herself adequately.  The wife was also on notice on the risk of the Full Court’s finding being made, such that she had not been deprived of any opportunity to lead further evidence.[2]

For more information regarding an Interim Spousal Maintenance Order

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[1] [2016]HCA 23

[2] Statement issued by the High Court 8 June 2016 per Ben Wickham, Senior Executive Deputy Registrar