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Divorce Legal Advice: Should the Amount Payable Under an Order for Spousal Maintenance Be Increased Due to Deteriorating Health?

Divorce Legal Advice

Divorce Legal Advice: Can Worsening Health Justify an Increase in Spousal Maintenance?

An order for spousal maintenance may be discharged, suspended, revived, increased, decreased or varied “in any other manner.” There are grounds that an applicant may rely upon in seeking increase the amount payable under a maintenance orders:

  1. a change in circumstances affecting the applicant;
  2. a change in circumstances affecting the respondent:
  3. material evidences was either withheld or false;
  4. an order was made by consent is no longer adequate having regard to any transfer or settlement of property’ and
  5. there is a subsequent change in the court of living.

The applicant need only prove one of the above grounds in order vary a maintenance order.

In Hand & Bodilly [2013] FamCAFC 98, the husband appealed a decision by the trial judge that the order for spousal maintenance in favour of the wife be discharged. There were orders made by consent in 2000 providing that the husband pay lump sum maintenance to the wife. The lump sum was referable to expenses resulting from her diagnosis of multiple sclerosis. In 2009, the wife filed an application to increase the amount of spousal maintenance payable under the orders made in 2000. Her application was based on the cost of modifying her home so as to accommodate her deteriorating physical condition. The trial judge granted the wife’s application.

Divorce Legal Advice: The Significance of Worsening Health and a Lack of Credibility

In essence, the husband’s appeal was based on his submission that the orders fell outside the scope of judicial discretion, and should thus be discharged. This submission was rejected by the Full Court, and the trial judge’s decision was affirmed. The reasons in support of the Full Court’s determination were based on the wife’s deteriorating condition and the husband’s conduct during the course of the proceedings.

The wife’s ability to function on a daily basis was limited. Expert evidence indicated that her condition adversely affected her cognitive functions – particularly in regard to her executive functioning. It was also determined that the wife would require additional support on account of the progression of multiple sclerosis. Additional support would be required for meal preparation, mobility and domestic assistance. Finally, the Full Court found that suitable modifications to the wife’s house would assist her in retaining greater independence while abating the risk of injury caused by falling. The wife was, after all, home-bound and had suffered injuries caused by falling.

The husband was unable to challenge the wife’s case in any meaningful way. He was a poor witness – being generally unresponsive and argumentative during cross examination. He was extremely resistant to providing adequate financial disclosures. The submissions upon which his case was based were completely lacking in any semblance of common sense. They were described by the Full Court as “breathtaking.” Additionally, the husband’s Senior Counsel conceded that the husband was capable of paying approximately $3,000-$4,000 per week.

Divorce Legal Advice: Concluding Remarks

Hand may be regarded as authority for the proposition that a deterioration in applicant’s health may justify increasing an existing spousal maintenance. This is particularly the case when the respondent’s conduct reflects a strong aversion to meaningfully participating in the proceedings.