While it is referred to as spousal maintenance, the legislation confirms de facto partners are also able to bring a claim.
The financially weaker party cannot expect to receive spousal maintenance forever.
It is only a temporary arrangement. The law in New Zealand requires both parties to assume responsibility for their own needs within a “reasonable time”.
You may wonder whether this could be more vague, but each couple’s circumstances will be very different. The length of the relationship, whether there are dependent children and each partner’s income earning ability will be relevant to assessing how long the financial support should continue.
The first step is usually for both parties to sit down with their lawyers and prepare a schedule of their weekly expenses so they can calculate the shortfall (or surplus) against their income.
It is useful to look at bank statements (including credit card statements) over the last 12 months to make sure all expenses have been included.
The expenses must be “reasonable”, but the case law confirms this is viewed in the context of the couple’s lifestyle or standard of living while they were together. Neither partner or spouse would be expected to scrimp and save following separation if they lived comfortably while together.
Some further points:
- The partner seeking spousal maintenance is not required to deplete their bank accounts or sell off assets before making a claim.
- The court may order that spousal maintenance be paid periodically or as a lump sum.
- Expenses for children are not usually considered as part of an application for spousal maintenance. Child support is paid to meet these expenses. And yes, you can be required to pay child support and spousal maintenance at the same time. Are you paying child support?
In your case, as a first step it would be prudent to ask for disclosure to confirm your wife’s income.
She should also provide disclosure of her personal bank accounts, to check her expenditure from that account.
Once your ex-wife has produced a schedule of her expenses, you should check these against her spending from your joint and business accounts, as well as any spending that appears in her personal accounts.
If there is a deficit between your wife’s income and expenses and her expenses are reasonable, then the question is whether it is reasonable for you to continue to cover that deficit two years on from your separation.
In your case, your wife still has the primary care of three relatively young children, one of whom is not yet school-aged.
She works as a relief teacher and may need to refresh her training or undertake further training to secure a permanent teacher position.
You are still in the process of dividing your relationship property assets.
Your business is operating profitably.
There is no precise or correct answer, but I suggest it would be reasonable for you to continue to pay spousal maintenance for around another year.
In responding to your wife’s lawyer’s letter, it would be worth pointing out that while you are agreeable to meeting the maintenance payments for the time being, the time is now approaching for your ex-wife to assume responsibility for her own needs.
Further, if the maintenance is to be paid, this is on the condition she ceases using the joint and business accounts to meet her expenses to avoid a “double-dipping” situation.
Jeremy Sutton is a barrister and family lawyer at Bastion Chambers.
