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Financial Separation From Spouse: Proving the Need for Spousal Maintenance and the Adverse Findings That May Be Justified When a Party Fails to Lead Available Evidence

Need for Spousal Maintenance

Financial Separation From Spouse: Introduction

In essence, the liability to pay maintenance arises from:

Hall v Hall [2016] HCA 23 is a recent decent of the High Court involving an appeal from the Full Court discharging interim maintenance orders against the respondent husband. The main issue in contention was whether the appellant wife was unable to support herself, despite some uncertainty concerning an entitlement to an annual payment of $150,000 under her late father’s will.

Financial Separation From Spouse: Background

The parties were married for 12 years and had two children. Orders for both final and urgent interim maintenance were sought by the appellant wife.

The wife’s evidence revealed that she had an interest in her late father’s estate. She maintained that the value the interest was unknown to her since she neither had a copy of her father’s will nor the particulars of his estate.

The trial judge ordered on an interim basis that the husband pay roughly $10,000 each month in maintenance to the wife. This determination was based on the trial judge’s finding that the wife’s interest in her late father’s estate should not be taken into account in deciding whether the wife could adequately support herself. The trial judge held that the lack of evidence meant that there was no way to determine whether the wife’s interest amounted to a financial resource demonstrating the wife’s ability to adequately support herself.

The husband subsequently led evidence containing information about the will of the wife’s father. His evidence showed that:

  • the wife’s father wished that she would receive $16,500,000 upon divorcing the husband; and
  • the wife should receive an annual income of $150,000 from a group of companies now owned by the wife’s brothers.

In light of this, the wife claimed that she had no knowledge of the evidence lead by the husband and she had not received any payments to date.

Having considered the husband’s evidence, the trial judge ultimately considered that the maintenance order should not be discharged. The husband appealed to the Full Court.

The Full Court allowed the appeal, holding that the maintenance orders should be discharged. This was based on the Full Court’s finding that the wife was able to adequately support herself on account of the annual payment. The wife appealed to the High Court.

The wife’s appeal was partly predicated on submission that the Full Court should not have found that her brothers would have provided the annual payment upon her request. This claim was supported by a letter from the wife’s brothers. The letter stated that the annual payment could not be paid to the wife at the discretion of her brothers. Instead, it was a matter for the board of the relevant companies to decide. Accordingly, the wife submitted that there was no evidentiary basis to support the Full Court’s finding that the wife was capable of adequately supporting herself.

Financial Separation From Spouse: The High Court’s Decision

The High Court dismissed the wife’s appeal. This was based on its finding that the wife was capable of adequately supporting herself.

The High Court affirmed the Full Court’s finding that the wife would have received the annual payment from the companies now owned by her brothers, if she had asked. This finding was based on the determination that any evidence the wife may have led in relation to her ability to obtain the annual payment would not have supported her case. And this, in turn, was inferred from the wife’s failure to lead such evidence, despite it being well within her ability to do so.

Moreover, the wife’s submission that her ability to claim the annual payment did not fall into the categories of evidence taken into account in determining a spousal maintenance application was also rejected. That the wife could have requested the annual payment was a circumstance to be taken into account under s 75(2)(o), and thus formed part of the court’s s 72(1) inquiry into whether the wife could adequately support herself.

Financial Separation From Spouse: Concluding Remarks

Hall is an instructive example of the type of evidentiary reasoning that courts should partake in determining whether a party can adequately support themselves. Specifically, it seems that if evidence is available to one of the parties and the relevant party fails to lead that evidence, then the court may conclude that the evidence in question would not have supported the relevant party’s case. This is precisely how the High Court dealt with the wife’s failure to provide evidence explaining why she had neither requested nor received payment since her father’s death.