When a couple separate, one partner may have an ongoing liability to financially support the other.  This obligation is known as “spousal maintenance” and is dealt with by the Family Proceedings Act 1980. Whether you are liable to pay such maintenance, or eligible to receive it, spousal maintenance can have significant financial implications following separation.

The obligation to pay maintenance arises when following separation, one partner is left in a position where they cannot meet their reasonable needs.  “Reasonable needs” is not considered to be the minimum required to provide food and shelter, but refers to the lifestyle that the partner was accustomed to during the relationship.  There are number of factors that are considered relevant to an assessment of a person’s “reasonable needs” including (but not limited to), payments towards appropriate accommodation and utilities, household and day-to-day expenditure, legal costs (when looking at an award of interim maintenance), entertainment costs, the standard of living the parties shared during the relationship, and in particular immediately prior to separation, and the conduct of the person seeking maintenance (in limited circumstances).

Maintenance can be payable during a marriage or civil union, after a marriage or civil union is dissolved, and when a de facto relationship ends. However the Court cannot make an order in respect of de facto relationships of less than three years unless there is a child of the relationship, the partner seeking maintenance has made a substantial contribution to the relationship, or a failure to make the order would result in serious injustice.

Following separation, interim maintenance is payable where one partner cannot meet their reasonable needs and the other partner has the ability to pay.  Ongoing maintenance requires the receiving partner to establish that they cannot practicably meet their own needs because of one or more of a number of ‘qualifying circumstances’ which include the following:

  • The ability of the parties to become self-supporting, having regard to the effects of the division of functions within the relationship, the likely earning capacity of each party and any other relevant circumstances;
  • The responsibility of each party for the ongoing daily care of any minor dependent children of the relationship;
  • The standard of living of the parties while they lived together;
  • The undertaking by a party of a reasonable period of education or training designed to increase their earning capacity or to reduce or eliminate the need for maintenance from the other party, if it would be unfair, in all the circumstances, for the reasonable needs of the party undertaking that education or training to be met immediately by that party (as a result of a number of prescribed circumstances).

Spousal maintenance is generally thought of as a temporary arrangement, and there is an expectation that people must assume responsibility for their own needs within a reasonable time, but there is no formula to determine how long maintenance is payable for. This depends on the particular facts of the case. However, maintenance obligations end if the receiving party enters into a new de facto relationship, marriage or civil union.  

The Court must have regard to the following matters when determining the amount of ongoing maintenance that is payable:

  • The means of each spouse or partner, including their potential earning capacity and any means derived from the division of property under the Property (Relationships) Act 1976;
  • The reasonable needs of each party;
  • The fact that the spouse or partner who is paying maintenance is supporting any other person;
  • The financial and other responsibilities of each spouse or partner;
  • Any other circumstances that make one spouse or partner liable to maintain the other.

Most of the time spousal maintenance issues can be resolved by consent, with the parties reaching a voluntary agreement. However if there is significant disagreement, or one party has an urgent financial need for maintenance which the other party is refusing to meet, then an application to the Family Court may be required.

If you would like further information or advice, please contact our Wellington based family lawyers Debbie Dunbar, email debbie.dunbar@morrisonkent.com, phone (04) 495 9940 or Maretta Twentyman, email maretta.twentyman@morrisonkent.com, phone (04) 495 8918.