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Division of Assets and Spousal Maintenance Requests

When married couples in Western Australia get divorced, their circumstances are governed by federal legislation, namely the Family Law Act 1975.

The Family Court of Western Australia recently considered the interaction between spousal maintenance and the parties’ property settlement. In particular, the court addressed whether it would be appropriate for the wife to receive spousal maintenance given the substantial property settlement in her favour. The assets were divided 68% in favour of the wife, but the court found that this was not relevant to her application for spousal support.

In F and F, [2009] FCWA 131, the parties began living together in 1995, were married in 2005 and separated in 2006. The husband worked as a mining supervisor. Since leaving school, the wife had worked on and off, usually as a shop assistant. There were two children of the marriage, aged six and ten years. Pursuant to a parenting order, the children spent 12 nights of every two week period with their mother.

The parties’ net assets were valued at $399,610. In addition, the husband had superannuation worth $49,867 while the wife had superannuation worth $9,425. The parties reached an agreement about the assets each would keep and the liabilities for which each would be responsible.

The wife brought an application for spousal maintenance of $300 per week. The husband claimed that the agreed property settlement so heavily favoured the wife that it would be inappropriate for her to receive maintenance even if she had a need for it. The wife asserted that she was entitled to maintenance due to the disparity between their respective incomes and her need to accommodate and support herself and their children.

The agreed settlement resulted in the wife receiving about 68% of the asset pool, including superannuation. This division would reduce the husband’s net assets to $96,219 plus superannuation worth $49,867. The wife would receive $303,391 net assets plus superannuation worth $9,425. The court found that this was just and equitable in the circumstances given the wife’s child care responsibilities and the parties different earning capacities.

The court found that because the wife did not receive anything more pursuant to their agreement than she would have been entitled to had the court made the adjustment, the property adjustment should not affect the wife’s application for spousal maintenance. Thus the division of the parties’ assets 68% in the wife’s favour was not relevant to her application for spousal maintenance.

The court applied a two step test to determine whether the wife should receive spousal support:

1. Can the wife support herself adequately without maintenance from the husband?
2. If the wife is not able to do so, to what extent is the husband reasonably able to meet the shortfall between her reasonable needs and the financial resources available to her?

The court reviewed the incomes and expenses of both the husband and the wife. The wife’s combined income from employment and child support was about $38,500 per year. The husband’s annual income, on the other hand, was $158,636 per year. The court noted that the significant disparity in the parties’ earning capacities resulted in the wife receiving significantly more of the property than the husband. The court noted that the husband would also have to bear costs associated with setting up a new home. The court recognised that the husband should also be given the opportunity to rebuild his asset base. As a result, the court ordered that the husband should pay spousal maintenance of $275 per week for a fixed period of three years.

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