Inability to work needed to succeed in spousal maintenance
inability to Work and Spousal Maintenance
- The husband also makes an application for spousal maintenance payable by the wife in the quantum of $150 per week ongoing and open-ended.
- Section 74(1) of the Act provides:
In proceedings with respect of the maintenance of a party to a marriage, the Court may make such order as it considers proper for the provision of maintenance in accordance with this part.
- Section 72(1) states:
A party to a marriage is liable to maintain the other party, to the extent that the first – mentioned 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 the marriage was 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 reason.
having regard to any relevant matter referred to in sub-section 75(2).
85. The consideration under s72 is a different one to the consideration of the s75(2) factors generally under this s79 process towards altering property interests. That is, s72creates a threshold of onus of proof in an applicant, firstly, to show that he/she has ‘needs’ and, secondly, that he/she cannot meet those needs It is then, and only then, if that threshold is crossed, that a Court will turn to consider the ability of the respondent to contribute to an applicant’s needs.
- The husband’s needs are set out and effectively unchallenged in his statement of financial circumstances filed to June 2017. He deposes to needs of $800 per week inclusive of legal costs of $385 per week. These costs are not an ongoing expense and I therefore accept the husband’s proper weekly expenses at approximately $415 per week. He currently has no accommodation costs and the options created by my s79 orders will add extra expense for him in this regard.
- The husband’s income is limited to interest on his superannuation fund which currently brings in $267 per week. The separate nature of the maintenance consideration as opposed to the s79 process implies that a party should not necessarily be required to diminish their assets as a form of self-maintenance.
- The difficulty with the husband’s application, however, is that he has not in my view, discharge his evidentiary burden in showing that he cannot obtain some employment to attend to his own needs. It is true that he has not worked for remunerative employment for some 17 years. His doctor deposes to a number of physical ailments which would preclude him from heavy labour. He is 58 years of age. Nevertheless, cross-examination of Dr A elicited concessions that the husband could perform lighter work. Dr A agreed that the husband could physically undertake his previous occupations as a (occupations omitted) or other rather less physical work such as (omitted) or (omitted). Whilst I accept that entry for Mr Meehan into the workforce might be circumstantially difficult, this is not the test. There is no evidence before me of any efforts or attempts by the husband to obtain any employment whatsoever or to undertake any form of re-training so as to enter the workforce. In this sense there is no evidence of him mitigating his own current position. I am not satisfied, therefore, that he has discharged that onus which rests heavily on him and therefore has not crossed that threshold question in his application for spousal maintenance must fail at that point.
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