Lady Justitia
       Family Law

Spousal Support / Alimony

“Both empirical and ideological factors tend to indicate that there will be a continuing decline in spousal support… As regards ideology, the growing trend towards individualism works against situations where one adult is required to support another…”1
“This study provides empirical support for the proposition that spousal support issues are fundamentally gender issues. Those who receive spousal support are almost always women, and those who pay it almost always men.”2

Sect 72 (1) of the Cmlth Family Law Act 1975

A party to a marriage is liable to maintain the other party, to the extent that the firstmentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

              (a)  by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

              (b)  by reason of age or physical or mental incapacity for appropriate gainful employment; or

              (c)  for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

Up until the 1970s marriage in Australia was regarded as the traditional ‘till death us do part’ institution where divorce, although tolerated, was more the anomaly than an acceptable possibility. It was a lifelong contract between two people and, like all contracts, violation of such was taken seriously by the courts. The ‘innocent’ aggrieved husband or wife would take the ‘guilty’ party to court and ask for a divorce claiming; desertion, cruelty, denial of conjugal rights, adultery or some similarly bad behaviour. If proven, the court would grant the divorce and then financially punish the transgressor who broke the contract by forcing the breadwinner to pay continuing spousal support to the other party, or alternatively, denying the dependent party spousal support. As in most cases, where the breadwinner was the male, the reason the punishment was financial support until the ex-wife might marry another supporter was that, she, being ‘only’ a woman, was incapable of being productive enough in employment to financially take care of herself.

The broad notion acceptable to the community is, I think, that if a husband of means irretrievable destroys the reality of a marriage, and it appears that he contemplates marriage with another woman who he prefers to his wife, the court should ensure that he pays to his spouse he is repudiating, having regard to his conduct towards her... whatever is fair and reasonable, recognizing that he is pursuing his own gratification in disregard of obligations he undertook. Justice Barry, Davis v Davis, Victorian Supreme Court, 1964.

Divorce laws changed significantly with the Commonwealth Family Law Act of 1975 when the whole concept of fault was done away with, and either party could much more simply gain a divorce having to prove little more than technically separating from their spouse.

Despite those who believe fault divorce should be brought back fully or in part, there are reasons to believe that this reform was justified.  If a couple married at average age 25 and lived till the first died at a not unexpected age of 80, then that would mean the contract they were signing would be expected to very possibly have a life of 55 years. This is an extraordinary long time for the law courts to expect parties to honour contracts. Who would sign an employment contract for such a period; or a contract to supply some agricultural produce; or to insure a driver against having accidents; or a house against fire and burglary? Do not physical and societal environmental factors change over years which would require the parties to re-consider their position? Do not people themselves change over time due to life experiences, maturity, and their ongoing education?

The simple fact is that whereas a person can be expected to honour a three-year employment contract that, in the main, occupies eight hours Monday to Friday every week of the year, can he or she really be expected to honour almost every day of a 55 year contract, even if each day’s hours are less? A person slowly coming to realise they no longer wish to be in a very close relationship with someone they originally felt deeply for, is not fundamentally a bad person deserving punishment, especially when one considers that approximately 45% of all marriages end in divorce.

However with the enlightening late 20th century attitude that men and women should no longer made to felt guilty for evolving into people with different beliefs, values and attitudes, one would then have to address the issue of whether the breadwinner should ever “be punished” again by giving post-divorce support to the other party.

As a 2002 family law study by a Professor Carol Rogerson for the Canadian Department of Justice stated3,

With the disappearance of fault, an explanation of spousal support as an innocent wife's expectation damages for her husband's breach of his marital obligations was no longer sustainable. To the extent that spousal support was understood as simply giving a spouse what he or she would have gotten had the marriage continued, the imposition of the obligation was rendered illegitimate. Absent a finding of wrongful breach of promise, why was one spouse required to use his or her "means" to meet the "needs" of the other post-divorce? Logically, either a new explanation had to be found to justify the obligation, or the obligation had to be eliminated.

Unfortunately, while many explanations have been put forward as why a party after divorce might truly suffer a drop in living standards and would need compensation to get them through the transitionary period, if not further, they are rarely accompanied by reasons explaining why it is the ex-partner who must be responsible for this compensation. 

Other explanations however, although few and far between, have endeavoured to make this link.

Compensation for economic loss: forgone careers and loss of opportunity

If we, for example, take the wife as the support claimant (which in practically all cases it is), then the essence of this economic loss theory is that for the length of the marriage, the woman was taken out the workforce to be a mother and/or wife and that by the time of the divorce when she would re-enter the job market, she would be at a great disadvantage in earning ability to others of her age, because of her lack of experience and acquired skills.

There are a number of responses to this:

What career?

What if, at the time of marriage, the wife was employed at the very low end of the job market, and of all her aspirations none was to rise in her career but simply to maintain her less than challenging job so as to give her attention to other pursuits such as sporting? A supermarket checkout operator who leaves her job for 15 years should not have that much trouble regaining it.

What job?

In the increasing affluent lifestyle that many Australian now enjoy, it is not that rare for a young woman to spend a number of years of overseas travel after high school and then returning home to marry without ever having maintained any full-time job.

Childless marriage

In the situation where the marriage bore no children, the obvious question to ask is how the wife was “deprived” of a career when there did not appear to be any reason why she could not undertake one all along. If the reason given was that she was obligated to help in her husband’s business, then that help would have contributed to its financial assets, assets which she would have claim to half of at the breakup of the marriage.

 

Invalid by omission

The most serious problem with compensation for economic loss argument is that no matter how many examples one may give of women in promising careers who were stopped mid-stream at the behest of the husband to give birth and care for children, even the defenders of the law would grudgingly admit that there have been divorced women who did not, by any stretch of the imagination, fit that career profile.

Yet as expressed on the Spousal Maintenance page of the Family Court of Australia in its introduction4,

Under the Family Law Act 1975, a person has a responsibility to financially assist their [former husband or wife] or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

No mention of limiting it to those who had their careers affected5 but to all divorced partners who are in financial need. So as the economic loss argument only works for some, and yet spousal support can apply to any party in need, it follows that we are still waiting for justification for this law.

One of the most egregious examples of this ‘enlightened, new age, fault-free’ divorce settlements is a Queensland case from 2010. According to a newspaper report6, the family assets, as accrued only from the valuations of the husband’s business as a builder, amounted to approximately $4,500,000. After orders to pay $600 per week for support of the twins from the marriage, the husband was also ordered, by Judge Gary Watts, to surrender 75% of the $4.5 million estate to the wife. Granted that 50% would be reasonable as division of assets, one wonders why over one million dollars was also needed for spouse support considering not only that the assets payment, one would think, would have been sufficient to keep the wolf from the door, but also the fact that during the court hearing, the wife’s mother had declared her wealth to be estimated at approximately $17,000,000 and that she had taken it upon herself to support her daughter and the twins.

 

So can spousal support / alimony be justified in the modern era?

Getting back then to the very reasonable comment made by Professor Rogerson, “why [is] one spouse required to use his or her "means" to meet the "needs" of the other post-divorce?” Does not divorce mean, to quote the Australian Oxford Dictionary, detached and separate? Why is one non-committed, autonomous individual somehow obligated to give financial aid to another after the court has finalised the financial settlements from their marriage and declared them free to go their separate ways?

There is a certain irony in the fact that the modern age that grants women equality to follow all vocations and pursuits, still embraces the patriarchal  19th century concept, in practice if not in theory, that there must be a man somewhere in their dependent lives to guarantee them financial support.

 

 

 

 

1.Spousal Support in Australia: A study of incidence and attitudes, Working Paper No 16, Feb 1999, Australian Institute of Family Studies.
2. op cit.
3.http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ss-pae/3.html
4.http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/property-and-finance/maintenance/
5.
Although there is an ambiguous term relating to earning ability and marriage, which may influence how much the recipient receives, but not whether or not they receive.
6. Overington, Caroline, ‘Gold digger’ gibe angers judge, The Australian, p.3, 15th May 2010

 

 

 

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