Q: My partner is aged 40, she is the main income earner, with an executive role, and is shortly returning to work. I will be looking after the baby. Are there any protections in the law for the stay-at-home parent should we separate? And if there is money payable to me, how would I get this money?
A: Yes, there is spousal maintenance which can be used in the event of separation. It consists of financial payments, normally periodic, to the stay-at-home partner. Spousal maintenance is financial support assisting (in this case) a non-working partner to meet their reasonable needs when they cannot because of certain circumstances.
How can you obtain spousal maintenance?
One or more of these circumstances must be present for spousal maintenance to be awarded:
- The partner’s ability to become self-supporting having regard to the effects of the division of functions within the relationship (e.g. primary earner vs. stay at home parent), the likely earning capacity of each partner and any other relevant circumstances;
- The responsibilities of each partner for the ongoing daily care of any minor or dependent children of the relationship;
- The standard of living of the partner’s while they lived together;
- Any physical or mental disability;
- Any inability to obtain work that is reasonable in the circumstances and is adequate to provide for that party; and
- Any undertaking of education or training designed to increase one party’s earning capacity or reduce or eliminate the need for maintenance
Determining the amount of maintenance
This is obtained normally either via agreement of the parties or from the family court.
It is important to mention the criteria here. You must be able to cite one or more of these circumstances:
- You have a diminished ability to become self-supporting because of the division of functions within the relationship (e.g. primary earner vs. stay at home mum).
- You are hampered in being able to obtain work, so that you need to be provided for adequately.
- There is a discrepancy in the earning capacity of both partners.
- There are added responsibilities for you with the ongoing daily care of any minor or dependent children from the relationship.
- There will be a difference in the standard of living you came to expect when you lived together.
- You have a physical or mental disability of some sort.
In determining the amount of maintenance, the court takes these factors into account:
The reasonable needs of each partner, by looking at their individual circumstances, the potential earning capacity of each person, their respective financial responsibilities, assets from any relationship property division, whether one partner is supporting the other, and any other circumstances that make one partner liable to maintain the other. Spousal maintenance can be awarded from assets held in family trusts and in circumstances where there are contracting out (or prenuptial) agreements.
The court prefers periodic payments, though lump sums have been awarded on occasion.
It’s important to note that spousal maintenance is temporary, to help you get back on your feet. It’s expected that after a reasonable amount of time both parties will be responsible for meeting their own needs.
Generally, a payment of 12 months – 2 years is common. There is also interim spousal maintenance, which can be awarded for up to six months until an application for maintenance can be determined.
The court has wide discretion to award interim maintenance; the test is what the judge thinks is reasonable. Payment can only be made by periodic payments and not a lump sum. A court may order a party to make payment by way of lump sum for the past or future maintenance of the other party.
This rule is likely to continue despite the development of the ‘clean-break’ principle.
Spousal maintenance can be paid either by agreement, or by court order. Sometimes the stay-at-home parent can remain in the family home without having to worry about paying the mortgage or other expenses, but that may not be enough to compensate them.
My best advice is not so much legal, but common sense. It is so important that couples communicate about money and access to accounts during a stressful period like this.
Both of you may be busy, you will certainly both be stressed. The amount of effort you put into making the process as easy as possible for your former partner is important for peace of mind, and for the relationship between the two of you in the years ahead.
Emotions may cloud this approach, but you both have new lives to lead, and if you have children their welfare is vital. Lay good foundations for a new life, even if the old ones have crumbled.