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WIFE APPLIES FOR SPOUSAL MAINTENANCE AGAINST THE HUSBAND WHILE THE LATTER ALLEGES THAT THE LIFESTYLE OF THE WIFE IS EXTRAVAGANT AND UNNECESSARY

Brickley & Modine [2021] FCCA 520 (19 March 2021)

This is an application filed by the wife against the husband for spousal maintenance where the husband receives a sizeable personal income protection insurance payments.

Facts:

The parties have two children together; Mr F born in 2003 and Y born in 2006. The wife moves the Court for orders that the husband pay her interim spousal maintenance in the amount of $5000 per month.

The husband presently receives $26,450 per month before tax, being the income protection insurance payments.

The wife’s current lifestyle is criticized by the husband. It is submitted on his behalf that the wife’s current accommodation is more luxurious than the former matrimonial home, and therefore an extravagant expenditure which is not necessary.

Issue: Should the court order the husband to pay the wife spousal maintenance?

Law:

  • Family Law Act 1975 S.72, 74, 75

Analysis:

Noting the parties’ lifestyle prior to separation and the husband’s continued significant income post separation, the standard of living the parties enjoyed and in particular the standard the wife enjoyed (including post separation) were higher than that enjoyed by the wife at present. The parties’ joint income prior to separation included the wife’s remuneration and the husband’s insurance payments.

It is not unreasonable for the wife to continue to enjoy a similar standard of living today. After separation, she was receiving $6000 per month from the husband, which is extrapolated to have been $2000 per month for Y (in accordance with the current payments made by the husband) and $4000 per month for the wife’s own needs.

Despite the complaints that he makes about the wife’s expenditure, the husband’s expenditure is, overall, more than the wife’s. His spending on discretionary items such as entertainment/hobbies, holidays, books and gifts is greater than hers, which also then lends support to the finding that the parties enjoyed a higher level of lifestyle previously than the wife does today (on the basis of the husband’s current spending when compared to the wife’s current spending). Indeed, the husband’s usual weekly expenses are almost $200 per week greater than that of the wife.

Noting the husband’s income of $6,183 and his expenditure of $5,471 per week, he has the capacity to pay $700 per week.

Conclusion:

In the circumstances, noting the husband’s capacity to pay $700 per week and the wife’s need of $565per week, it is just and equitable, for there to be an order that the husband pay to the wife a weekly amount of $565 in spousal maintenance.

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