w w w . b r e n t o n p r i e s t l e y . c o m


Spousal Maintenance and Australian Family Law (2003)
Brenton Priestley

Spousal maintenance [FLA s72 & 75(2)] is an out-dated concept that continues to sustain vestiges of a long dead relationship contrary to the ‘clean break’ principle and the financial independence of the parties as embodied in FLA s.81. It also deters the parties from entering into new relationships by the creation of financial obstacles and disincentives.

Discuss


 

 

For the purposes of this discussion, spousal maintenance is assumed to move from husband to wife, even though the Family Law Act provides for equal rights to spousal maintenance. Current statistics show that instances of maintenance passing from wife to husband are negligible.[1]

INTRODUCTION – SPOUSAL MAINTENANCE VERSUS THE ‘CLEAN-BREAK’ PRINCIPLE

The traditional view of spousal maintenance within the common law was based on an inherently patriarchal view of male/female relationships. Women were dependent on men and generally seen as being incapable of self-sufficiency. Divorce did not sever the dependency of a wife on her husband, and it was therefore his duty to provide financial support for her indefinitely[2]. The feminist movement of the 1960s challenged this view of women’s weakness and dependence on men. Feminism ultimately caught up with the law, and the Family Law Act was commenced in 1976 ‘with the brave hopes of a generation which embraced a model of ‘equality’ between the sexes’[3]. Was spousal maintenance, based as it was on gender stereotypes founded in inequality, consistent with women’s liberation? Initially, the general view of policy-makers was that with

increased participation of women in the labour market... there is no reason for ex-spouses to have any continuing financial relationship after divorce. If women are seeking equality with men in the labour market... then wives should no longer expect financial support from an ex-husband after divorce.[4]

This view, of a financial ‘clean-break’ between couples after divorce echoed throughout the legal systems of the Western world. Spousal maintenance was seen as being outdated and discriminatory. The Swedish Marriage Code stated that ‘Following a divorce each spouse shall be responsible for his or her own support’[5]. Although not quite as extreme, the UK, US and Australia all enacted legislation that emphasised the desirability of a clean-break. The Australian Family Law Act urged courts to ‘finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them’[6]. The clean-break was generally seen as being progressive, beneficial and considered to be

desired in almost all cases by the parties to the marriage themselves. It provides a closure and a starting point; it is an opportunity to move from a relationship which may have resulted in fear, anxiety, violence and at least unhappiness and to minimise contact with the other party for the future; it provides certainty for re-establishment and growth... and removes the opportunity for the exercise of power over dependants.[7]

However, this was not the end of spousal maintenance in Australia. Despite the codification of the clean-break principle, fairly extensive provisions for spousal maintenance were also designed. Are the two inconsistent? Should spousal maintenance be abolished? Or, is the clean-break principle not quite as fair as previously thought?

THE STATUS OF SPOUSAL MAINTENANCE IN AUSTRALIAN LAW

The Family Law Act sets out in s 72 the basic responsibility of one party of a marriage to contribute to the support of the other, and s 75(2) sets out the elements to be taken into consideration when apportioning spousal maintenance. These matters range from the nature of the parties’ marriage[8], their post-marriage relationships[9], their financial situations and prospects for employment[10] and any parental obligations to children of the marriage[11]. As it stands, the framework provided by section 75(2) for apportioning spousal maintenance appears to be both comprehensive and fair, so much so that other jurisdictions acknowledge its attractiveness[12].

Notwithstanding the extensive provisions for spousal maintenance in s 82, instances of orders for and payment of it remain rare and usually brief – the most optimistic research estimates payment in eight per cent of divorces[13]. The clean-break principle still seems to strongly influence both the Family Court judiciary as well as applicants who are potentially entitled to spousal maintenance.

The most significant and relevant case law of recent years regarding spousal maintenance has therefore been those cases in which maintenance has been granted – Mitchell[14], Best[15], Clauson[16] - cases which, in the Family Law Council’s words, illustrate ‘a more generous judicial interpretation of the conditions necessary to establish a spousal maintenance claim’[17]. Such advancements have largely stemmed from the landmark decision from the Supreme Court of Canada in Moge v Moge.[18]

THE FEMINISATION OF POVERTY AND THE FAILURE OF THE CLEAN-BREAK PRINCIPLE

Justice L'Heureux-Dub�’s judgement in Moge is important because it effectively illustrates the impracticability of the clean-break:

[m]arriage per se does not... automatically entitle a spouse to support. In rare cases, the spouses are able to make a clean break. But in most marriages in which both partners make economic sacrifices and share domestic responsibilities, or where one spouse has suffered economic losses in order to enable the other spouse to further a career, their roles should be considered in the spousal support order.[19]

Likewise,

the clean-break scenario does not apply to the majority of divorcing couples. The ideal clean-break couple have never had children and at the time of the divorce, have only to divide their property... Children require continuing parental support that limits the earning capacity of the custodial parent - and necessitates continuing financial assistance from the non-custodial parent.[20]

The clean-break principle is founded on the presumption that equality now exists between men and women. Men’s Rights groups, not surprisingly, argue for the clean-break, saying that ‘[t]here is no valid basis for making one person responsible for the other person's future... [especially] considering that equal opportunity legislation has been enacted to assist all to obtain employment’[21]. Although official policy may promote equality, inequality is still ingrained at a social level: significant discrepancies still exist between men’s and women’s income and women still exercise greater responsibility in raising the children of a marriage. One Melbourne judge has said of the clean-break principle:

[it] was introduced in times which were quite different from the present... [t]he social, economic and employment setting in the mid seventies w[ere] quite different... At that time there was ample employment and there was an emphasis upon and expectation about the reality of wives being able to obtain employment and support themselves. Even in those times I think those expectations were unrealistic but they have certainly ceased to be so in recent years.[22]

The idea that divorce leaves a marriage’s parties in equal positions, able to start afresh – the central tenet of the clean-break principle – was also effectively demolished by Justice L'Heureux-Dub�’s judgement. Several studies which documented the ‘feminisation of poverty’ caused by divorce[23] were cited. Essentially: ‘men tend to maintain the standard of living they had before the divorce, while women and children sink into instant poverty’[24].

The significance of the Moge decision in Australian law is the effect that it has had on apportioning spousal maintenance in cases such as Best and Mitchell. Both cases cited Moge in their arguments and determination – specifically on the issues of the feminisation of poverty and the failure of the clean-break principle - and both cases stand as strong statements of the current law as it applies to spousal maintenance.

THE NECESSITY OF SPOUSAL MAINTENANCE

Interestingly, in both Best and Mitchell, the wife acted as the family breadwinner during the early years of the marriage while the husband studied[25]. Spousal maintenance was awarded partially due to this factor: without the support and sacrifice of their wives, the husbands would not have reached their eventual earning levels[26]. This idea of compensatory maintenance is one of several justifications regularly cited for spousal maintenance. Briefly, the others are as follows:

Obviously, in light of findings on the ‘feminisation of poverty’ following divorce, the need of the wife for basic subsistence is another major justification.

Linked to this is the idea of spousal maintenance as a ‘top up of child support’[27] – especially when the mother is supporting a very young child and cannot work.

Finally, spousal maintenance is necessary to ease the strain on the welfare system. If a family is self-sufficient before divorce, the argument goes, then family support should be privatised, through child and spousal maintenance, rather than government funded.

CONCLUSION

In regards to the assertion that spousal maintenance ‘deters parties from entering into new relationships by the creation of financial obstacles and disincentives’, this is true only to the extent that any responsibilities that spouses owe to one another could act as deterrents. Furthermore, s 72(2) specifically provides for the circumstances surrounding post-divorce relationships[28] to be taken into account when calculating spousal maintenance.

The idea that spousal maintenance ‘sustains vestiges of a long dead relationship’ is rebutted by the fact that when there are children in the marriage, despite the wishes of the parties, the relationship can never really ‘die’. Both parties have an obligation to those children. Because of this, the clean-break principle embodied in s 81 of the Family Law Act is theoretically admirable, but largely inapplicable.

Spousal maintenance is clearly, then, not an outdated concept. The justifications for it are borne not out of old-fashioned views of female inequality, but rather an honest appraisal of the economic and social status of men and women in modern Australian society.

 

ENDNOTES

[1] Juliet Behrens and Bruce Smyth, ‘Spousal Support in Australia: A study of incidence and attitudes’ (Working Paper 16, AIFS, 1999) 10.

[2] Unless she remarried, or was found guilty of matrimonial fault.

[3] Anne-Marie Lanteri, Property and Spousal Maintenance (1998) Television Education Network <http://www.tved.net.au/ten_new/subscribers/ed_lec/
back_papers/v9809spm.htm > at 8 May 2003.

[4] Mavis Maclean and Lenore J. Weitzman, ‘Introduction’ in Mavis Maclean and Lenore J. Weitzman (eds), Economic Consequences of Divorce: The International Perspective (1992) 187, 188.

[15] Quoted in Ibid 187.

[6] Family Law Act 1975 (Cth) s 81

[7] Lantieri, above n 2.

[8] Family Law Act 1975 (Cth) sub-ss 75(2)(j), 75(2)(k), 75(2)(p).

[9] Family Law Act 1975 (Cth) sub-ss 75(2)(e), 75(g), 75(2)(m).

[10] Family Law Act 1975 (Cth) sub-ss 75(2)(a), 75(2)(d), 75(2)(g), 75(2)(h).

[11] Family Law Act 1975 (Cth) sub-ss 75(2)(c), 75(2)(d)(ii), 75(2)(l), 75(2)(na).

[1] See, eg, Sir Ivor Richardson, ‘Family Courts: Some Questions for Consideration’ (Speech delivered at Australasian Family Court Judges’ Conference, Auckland, 16 October 1999) and Maclean and Weitzman, above n 3, 194.

[13] Juliet Behrens and Bruce Smyth, above n 1, 7.See also CCH, Australian Family Law and Practice, vol 1, para 25-505 which puts the frequency of spousal maintenance as occurring in five per cent of divorces.

[14] (1995) FLC 92-601

[15] (1993) FLC 92-418

[16] (1995) FLC 92-595

[17] Family Law Council, ‘Property and Family Law: Options for Change’ (FLC, 1999) 127.

[18] [1992] 3 SCR 813

[19] [1992] 3 SCR 813, accessed on Canadian Legal Information Institute <http://www.canlii.org/ca/cas/scc/1992/1992scc111.html > at 11 May 2003.

[20] Maclean and Weitzman, above n 3, 188.

[21] The Men’s Confraternity, quoted in Miranda Kaye and Julia Tolmie, ‘Fathers' Rights Groups in Australia and their Engagement with Issues in Family Law’ (Sydney University, 1999) 14.

[22] Quoted in Family Law Council, above n 13, 135.

[23] See especially Lenore J Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985).

[24] Justice L'Heureux-Dub�, above n 18.

[25] Degrees in Law, no less!

[26] This factor in ascertaining maintenance is provided for in Family Law Act 1975 (Cth) sub-s 75(2)(j).

[27] Quoted in Family Law Council, above n 13, 126.

[28] Family Law Act 1975 (Cth) sub-s 75(2)(e): ‘the responsibilities of either party to support any other person’ and sub-s 75(2)(m): ‘if either party is cohabiting with another person—the financial circumstances relating to the cohabitation.’


feedback.gif (356 bytes)