Section 75(2) of the Family Law Act sets out 18 “spousal maintenance considerations” that are taken into account, so far as they are relevant, in determining application for property or maintenance orders. Among the consideration to be taken into account is: “…the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party…” The degree to which this factor may be relied upon in support of a spousal maintenance application was explored in the Full Court’s decision in Tye & Tye (1976) 2 FamLR 11,205.
Tye involved an appeal from the husband against a maintenance order in favour of the wife. The order provided that the husband would pay $60 per week for a period of 5 months and $1,700 within within 2 months. The husband appealed the order on the basis the trial judge had erred in relation to amount of maintenance the husband was required to pay.
The parties were married and had been in a relationship for 4 years. During most of this time, the wife supported the husband while he completed his secondary education and completed a training course. Upon completing the course, he accepted a job offer in Singapore and ended the parties’ relationship. The wife developed an anxiety disorder partly caused by the breakdown of the parties’ relationship. The periodic maintenance was meant to cover the wife’s medically confirmed inability to work for a 2 months. The lump sum component referred various expenses the wife had incurred, although it is not clear how the trial judge determined the lump sum component to amount to $1,700.
The Full Court determined that the husband’s appeal should be dismissed. The husband’s application to decrease the amount of period maintenance was dismissed on the basis that the periodic sum payable under the current order was justified. The wife was able to adduce medical evidence to the effect that she was unable to work for a period. Accordingly, she should receive maintenance until she is able to resume her employment.
As for the lump sum component, the Full Court held that the sum should be increased. The basis for varying the order for lump sum maintenance was three-fold:
Accordingly, the Full Court increased the lump sum payment from $1,700 to $2,360.
Tye is one of the first decisions to deal with the issue of the extent to which a party has contributed to the earning capacity of the other party. Supporting a spouse while they undertake a course of study or training that results in that spouse obtaining employment is certainly relevant in regard to this consideration.