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Marriage Breakdown and Spousal Support
Walter Drescher
Walter Drescher

On separation, each spouse has two obligations: firstly, to support the other spouse (if they have need), and the second is to be or become self supporting. There is no absolute entitlement to spousal support. The spouse that claims spousal support must be able to show that he or she has a financial need that cannot be satisfied by his/her own efforts. "Need" does not mean subsistence income sufficient to keep a roof over one's head and then access the food bank! The standard of living should be as close to what was enjoyed during the marriage. If the spouse is unable to by his/her own efforts to be fully self supporting, that spouse will be entitled to "top up" spousal support. The payor spouse would obviously have to have the ability to pay such extra support from existing income. The general test is: was there an "economic disadvantage" arising from the marriage or the marriage break down? In normal situations, including farming, this economic disadvantage is the inability of the needy spouse to be self supporting because of the role played by that spouse during the marriage. In many marriages the wife has played the role of stay at home parent and housewife. This has usually been at the expense of any career or employment outside the home and the ability to be self supporting on separation. Compensation for this economic disadvantage is usually paid in the form of on going monthly support until such time as the spouse becomes reasonably self supporting. A short marriage with no children and where both spouses are working and continuing with their careers that they were in at the start of the marriage would be unlikely to attract spousal support even though one spouse is earning a larger income than the other. The spouse who has remained at home throughout the marriage would be entitled to support if they were unable to immediately become self supporting. The amount of support a spouse would be entitled to would be dependent upon the family income available, any income from any form of employment that they are able to obtain, and that spouse's reasonable expenses. A spouse who needs to re-enter the work force so that she can contribute to her own support will not be expected or required to take any job available paying minimum wage. The length of time that support will continue will depend upon what happens in the future and courts are reluctant to "crystal ball" the future and set the amount of time that support will be paid for. Rather, they require the payor to return to court or negotiate a reduction or termination of support once there has been a material change in circumstances. Where the receiving spouse is capable of becoming self supporting and makes little or not effort to do so, then a court may prescribe that the spouse will have a certain fixed amount of time within which to become self supporting and if not, be cut off from the support after that time even if she is still not self supporting. Property division can affect the amount of spousal support. If the property division produces income for the receiving spouse, that income will affect the quantum of support.

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