Money matters can be a pressing issue following the end of a relationship. Common questions at this time include ‘what happens when I can’t afford to support myself after the break up?’ or ‘do I have to financially support my ex-partner?’.
The answer to these questions is contained within legislation such as the Property (Relationships) Act 1976 and the Family Proceedings Act 1980. This article will cover some of the key information in relation to spousal maintenance you should be aware of if you’re currently in a relationship or have recently separated.
What is spousal maintenance?
Financial obligations to a spouse or partner do not necessarily end when the relationship does. Spousal maintenance is ongoing financial support provided by one party to another after a relationship has ended. Spousal maintenance applies to relationships such as de facto relationships, marriages and civil unions of three years or more. This financial support is separate to child support and can be paid additionally.
Is spousal maintenance always payable after separation?
There is no automatic entitlement to spousal maintenance following the end of a relationship. The spouse or partner claiming maintenance must fall within certain circumstances. If a person does qualify for spousal maintenance, the amount payable and the duration of payments is determined on the unique facts of each case.
How do I qualify for spousal maintenance?
The circumstances considered depend on whether maintenance is sought on an interim or final basis. For interim or temporary maintenance, the Family Court has a wide discretion to award what it deems “just” in the circumstances. A Court may only order final maintenance if a party cannot meet their own reasonable needs due to one or more of the following circumstances:
- The ability of each party to become self-supporting, such as earning capacity and the effects of the division of functions within the relationship.
- The responsibilities of either party after the relationship has ended, such as care of dependent children.
- The standard of living when the parties lived together.
- When one party has undertaken a period of education to improve their financial position.
Applying for spousal maintenance
When a relationship ends and one party wishes to seek spousal maintenance, this can be resolved by reaching a voluntary agreement before any court applications are made. This may involve the parties negotiating a financial settlement with the assistance of their lawyers. Alternatively, an application for spousal maintenance can be made to the Family Court. However, the Judge may direct that yourself and your ex-partner first attend mediation. The matter may then go to a court hearing whereby each side will call evidence. The evidence relied upon will usually include bank statements, payslips and evidence from Inland Revenue. The party claiming maintenance will have to show proof of their inability to meet their reasonable needs.
How much maintenance can I get?
The amount of spousal maintenance payable depends on each party’s needs, means and responsibilities. This means factors such as income levels, earning capacity and financial responsibilities will form part of the Court’s consideration. Each application is assessed on a case-by-case basis.
How long is spousal maintenance paid for?
Spousal maintenance is usually temporary and is intended to be payable while the receiving party is taking steps to become financially independent. While time periods vary, spousal maintenance is usually payable for several months or for a couple of years. Only in exceptional circumstances will the Court order spousal maintenance be payable for an extended period.
Will the COVID-19 Pandemic affect the amount of spousal maintenance payable?
COVID-19 has certainly had a global impact on the economy and personal finances. Recent case law indicates that the effects of COVID-19 will be considered by the court when taking into account the means of a party to pay maintenance. For example, if the industry you work in has been particularly impacted by COVID-19, the court may consider how this has affected your ability to pay maintenance.
I already have a contracting out agreement, will I still need to pay spousal maintenance?
A valid contracting out agreement will not prevent any future claims for spousal maintenance. This is because the obligation to pay spousal maintenance cannot be contracted out of.
If you require any assistance or advice in respect of relationship property matters, please contact our family law team.
Anya Graeff
Law Clerk
Anya joined Govett Quilliam in January 2022 after completing her law degree at the University of Otago.
Anya's passion lies within the family law sphere, and she is particularly interested in matters concerning relationship property, family violence, and care of children.
Her time spent working in the Oranga Tamariki legal team during her legal studies gives her a more holistic understanding of the issues underpinning family matters, which she brings to our Family Law team.
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