Spousal maintenance (sometimes called spousal support), is ongoing financial support provided by one party to another when a relationship ends. This includes marriages, civil unions and de facto relationships of three or more years. Spousal maintenance is different to child support payments and may be paid in addition to child support.
It is normally in the form of direct periodic payments but in some cases could include bills resulting from occupation of the family home by the non-paying spouse.
The intention is to provide support to a party who cannot meet their own reasonable needs due to the existence of any one of four circumstances.
Spousal maintenance can only be claimed in those certain circumstances (see below) and is generally considered to be a temporary arrangement. After a reasonable amount of time it is thought that both parties should be responsible for maintaining themselves financially without any reliance on their ex-partner.
Parties may come to their own arrangements and record these in written form in a ‘voluntary agreement’. One voluntary agreement might make provision for both child support and spousal maintenance. Once an agreement is entered into, it is legally enforceable; a voluntary agreement does not prevent you applying to the Court for spousal maintenance.
Liability where a marriage or civil union has been dissolved or de facto relationship has ended:
Section 64 of the Family Proceedings Act provides that after a marriage or civil union is dissolved or a de facto relationship has ended, spousal maintenance may be payable based on any of the following four grounds:
- The ability of each party to become self supporting
- Likely earning capacity of each party
- Consideration of the effects of the division of functions within the relationship
- The responsibilities of either party after the relationship has ended, for the daily care of dependent children
- The standard of living when the parties lived together
- The undertaking by one spouse, of a period of education to improve their earning capacity or to reduce their need for maintenance payments
- This may be due to the division of functions within the relationship or due to arrangements surrounding the care of children
- Because the party previously maintained, or contributed to the maintenance of the other during a period of education or training.
One of the above circumstances needs to be the primary reason why a party is unable to meet their own needs.
Liability before a marriage or civil union is dissolved
There can be liability for spousal maintenance before a marriage or civil union is dissolved where one party can show that there is a reasonable need for it based on one of six grounds:
- Any of the four grounds outlined above
- He/she has a physical or mental disability
- If he/she is unable to obtain work that is reasonable for he/she to do and is adequate to maintain him/her.
Parents who are not married or in a civil union
Where parents are not married or in a civil union, one natural parent has the right to apply for spousal maintenance from the other natural parent. The applicant must either have day-to-day care (custody) of the child, or have had custody at some time in the past and the natural father must be someone who could be liable to pay child support.
In deciding her to grant a maintenance order, the court will look firstly at whether to do so would be in the child’s best interests to do so and will also look closely at the resources and needs of each parent.
Relevant factors in deciding the amount payable:
- The needs of the parties
- The means of the parties (earning capacity)
- The responsibilities of the parties (i.e. for support of another person)
A person can apply for spousal maintenance by way of an application to the Family Court. Parties may also come to an agreement via negotiation between their lawyers.
Spousal maintenance is generally a temporary arrangement aimed at helping out one party as they work on becoming financially independent. After a reasonable amount of time it is thought that both parties should be responsible for maintaining themselves financially without any reliance on their ex-partner.
Occasionally spousal support will continue to be payable past this point, but only in special circumstances where the Court considers it just.
Lawyer’s fees will vary considerably; at Jeremy Sutton Barristers we will happily set a fixed fee for the services we provide for your case going forward in our initial consultation with you. You also have the option of an hourly rate charge.
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Please call us to arrange an appointment. In our first meeting with you, we will explain the law, your options and the outcome you can reasonably expect. We will also advise a fixed fee for your case and the likely time it will take to settle.
You can contact us by phone on (09) 309 4647.
Jeremy Sutton Barristers would like to acknowledge the assistance of the NZ MoJ and LexisNexis NZ in compiling the material on this website. For more information visit:http://www.justice.govt.nz/family/.
“The information posted on this website is prepared for a general audience, without investigation into the facts of any particular case. This information is no substitute for legal advice and does not create a lawyer-client relationship; you are advised to consult with a lawyer on any legal issue.”