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.
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. 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’. 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
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 Spousal maintenance was seen as being outdated and discriminatory.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’. 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’. The clean-break was generally seen as being progressive, beneficial and considered to be
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, their post-marriage relationships, their financial situations and prospects for employment and any parental obligations to children of the marriage. 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.
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. 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, Best, Clauson - 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’. Such advancements have largely stemmed from the landmark decision from the Supreme Court of Canada in Moge v Moge.
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:
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’. 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:
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 were cited. Essentially: ‘men tend to maintain the standard of living they had before the divorce, while women and children sink into instant poverty’.
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. 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. 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’ – 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.
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 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.