THE INADEQUACEY OF SPOUSAL MAINTENANCE IN AUSTRALIA

The recent moves on both a state and national level in relation to increasing awareness of domestic violence and providing greater government funding in this area have been long overdue.

However, when it comes to the breakdown of relationships, women still tend to do it tougher than men post-separation. That is not always the case but certainly, in my view, our law on spousal maintenance in this country has been inadequate for many years and fails to provide adequate protection and security for women in certain situations.

That is not to say, that the Family Law Act is perfect when it comes to treating men in every situation either. However, from an economic and financial point of view, spousal maintenance is one area where women can, in certain circumstances, be left considerably worse off than their male counterparts.

The problem lies with the definition of spousal maintenance within our Family Law Act and the test that one must pass. A woman needs to show that she cannot “adequately” support herself before she can even claim spousal maintenance.

Whilst, the case law over the years has widened the definition and interpretation of the word “adequate” the fact is that the word still remains in our legislation.

In particular, women in the post-GFC economic climate who have taken on the substantial parenting and care role of children throughout the marriage are now even more exposed.

The reason for this is that the net asset pool of a lot of couples is shrinking. The law relating to property settlement allows a greater proportion of the property to be given to a woman who is not working and who has given up a substantial working career to raise the family.

Whilst that jurisprudence is to be applauded, the problem is that there are many asset pools where the net assets and resources are modest ($500,000.00 – $1 million) but where one party has a substantial earning capacity.

In a typical case, where the children have left the home, the parties may be in their early – mid fifties. The wife, gave up her career some 20 – 30 years ago to raise the children who have now left home and are successfully pursuing studies and careers. The husband has spent the entire relationship supporting the family but has also had the benefit of building up a substantial reputation and expertise in an area of work.

The problem that now confronts the wife in this situation is that she will never be able to earn an income similar to what her husband has earned. She may be given an extra 10% of the property pool (say an extra $100,000.00) but that hardly compensates for the years of sacrifice that have been made.

The problem with our legislation is that it doesn’t recognise, when looking at spousal maintenance, the other factors that go with an earning capacity. An earning capacity does not bring with it simply economic advantages. I suggest that it also brings with it the following:-

• Emotional comfort and health – if one has had experience in the workforce and built up reputation and skills, then one has confidence in their own ability to keep working (through and past retirement years if necessary). A woman who has given up a working career but then suddenly has to re-train and earn a “adequate” income does not have that same emotional security and comfort;
• Social factors – there is no surprise that one who works their entire life and builds up contacts, reputation and expertise also widens their professional circle of friends, colleagues and support networks. A woman who has given up her working career to raise her family, does not enjoy that same benefit even if she is able to re-enter the workforce;
• Lifestyle – once again, a successful career male has moved in the right circles and enjoys a good social lifestyle and connections well after separation. The same lifestyle benefits often cannot be enjoyed from a woman who has to re-enter the workforce at a late age; and
• Security – it is nonsense to suggest that a woman who starts her working career late in her life (or has to re-train) has the same security of employment in these economic times as a male who has worked for 20 – 30 years and built up expertise and contacts. It is true, that many jobs don’t have a great deal of security attached to them, but one that has had the benefit and opportunities to build up lifelong career contacts and expertise can usually get a job somewhere, even when times are tough.

There are many other anomalies in the law of spousal maintenance and some of them include the following:-

• If a woman in a wealthy separation receives substantial property interests, then the investment of those monies and the earning of a notional income is treated as income that is said to enable that woman to “adequately support themselves”. That is despite the fact that the husband receives and/or retains property of at least an equal value but in addition to that, has an ongoing substantial earning capacity built up through a long marriage; and
• Statements by our Full Court of the Family Court such as “a wife is not entitled to live at a level of luxury and comfort merely because the other party is wealthy” still seem to hold sway – that is, even if the wife has adopted the homemaking and parenting role and say raised five children over a 25 – 30 year period, then the fact that the husband earns a considerable income and lives a luxurious lifestyle, doesn’t mean that the wife (who provided that indirect opportunity to the husband) is afforded the same lifestyle. Seriously?

The fact is that there are still women who provide substantial homemaking and child raising roles during their relationship. These roles often involve not only giving up a current job but giving up the prospect of further ongoing employment and advancement.

On this international day of women, we need to recognise the inadequacy afforded to these women in our system and it’s about time the government changed the legislation.