Sad v Msd
| Jurisdiction | New Zealand |
| Judge | Judge L J Ryan |
| Judgment Date | 04 February 2011 |
| Court | Family Court |
| Docket Number | FAM-2010-004-000858 |
| Date | 04 February 2011 |
Under “The Family Proceedings Act 1980”
FAM-2010-004-000858
IN THE FAMILY COURT AT NORTH SHORE
Application for an order for spousal maintenance and past maintenance — parties separated after being in a relationship for eight years — applicant had not worked since their child was born and sought maintenance for the two years it would take for her to retrain or set herself up in business — respondent claimed the parties had signed a s21 Property (Relationships) Act 1976 contracting out agreement in full and final settlement of all claims — whether spousal maintenance under s64 Family Proceedings Act 1980 (“FPA”) and past spousal maintenance under s63 FPA was appropriate.
M Headifen for the Applicant
A McLean for the Respondent
RESERVED JUDGMENT OF Judge L J Ryan
[Spousal Maintenance]
The Applicant seeks an order for spousal maintenance coupled with past maintenance. She and the Respondent commenced living together in a de facto relationship in September 2000, they married on 22 March 2002, they had their child P in July 2004, separated in October 2008 and their marriage was dissolved on 2 December 2010. As from October last year they have shared the care of P on a week about basis.
The Applicant is not working and has not done so since P was born. She seeks maintenance for two years which she says is the period of time it will take for her to either retrain or alternatively set herself up as a curtain maker, a skill that she deployed before she ceased work and that she undertakes on a casual basis currently. Presently she is supported by virtue of a Domestic Purpose Benefit.
The Respondent is a sales manager and earns approximately $212,000 per annum, part of which is a base salary of $130,000 with the balance made up from monthly commissions.
His main criticism of the application is that the Applicant has been living apart from him now for over two years and she has done absolutely nothing to move on to put herself in the situation where she can support herself. He says she has excellent skills in her area of expertise and there is absolutely no reason why she should not have been working even part time to contribute towards her own support.
The application for spousal maintenance needs to be considered under the provisions of s 64 given that the parties' marriage has been dissolved. Section 64 provides:
Maintenance after marriage [[or civil union]] dissolved or de facto relationship ends
(1) Subject to section 64A, after the dissolution of a marriage [[or civil union]] or, in the case of a de facto relationship, after the de facto partners cease to live together, each spouse, [[civil union partner,]] or de facto partner is liable to maintain the other spouse[[, civil union partner,]] or de facto partner to the extent that such maintenance is necessary to meet the reasonable needs of the other spouse[[, civil union partner,]] or de facto partner, where the other spouse[[, civil union partner,]] or de facto partner cannot practicably meet the whole or any part of those needs because of any 1 or more of the circumstances specified in subsection (2).
(2) The circumstances referred to in subsection (1) are as follows:
(a) the ability of the spouses[[, civil union partners,]] or de facto partners to become self-supporting, having regard to—
(i) the effects of the division of functions within the marriage [[or civil union]] or de facto relationship while the spouses[[, civil union partners,]] or de facto partners lived together:
(ii) the likely earning capacity of each spouse[[, civil union partner,]] or de facto partner:
(iii) any other relevant circumstances:
(b) the responsibilities of each spouse[[, civil union partner,]] or de facto partner for the ongoing daily care of any minor or dependent children of the marriage [[or civil union]] or (as the case requires) any minor or dependent children of the de facto relationship after the dissolution of the marriage [[or civil union]] or (as the case requires) the de facto partners ceased to live together:
(c) the standard of living of the spouses[[, civil union partners,]] or de facto partners while they lived together:
(d) the undertaking by a spouse[[, civil union partner,]] or de facto partner of a reasonable period of education or training designed to increase the earning capacity of that spouse[[, civil union partner,]] or de facto partner or to reduce or eliminate the need of that spouse[[, civil union partner,]] or de facto partner for maintenance from the other spouse[[, civil union partner,]] or de facto partner if it would be unfair, in all the circumstances, for the reasonable needs of the spouse[[, civil union partner,]] or de facto partner undertaking that education or training to be met immediately by that spouse[[, civil union partner,]] or de facto partner—
(i) because of the effects of any of the matters set out in paragraphs (a)(i) and (b) on the potential earning capacity of that spouse[[, civil union partner,]] or de facto partner; or
(ii) because that spouse[[, civil union partner,]] or de facto partner has previously maintained or contributed to the maintenance of the other spouse[[, civil union partner,]] or de facto partner during a period of education or training.
(3) For the purposes of subsection (2)(a)(i), if the marriage [[or civil union]] was immediately preceded by a de facto relationship between the [[spouses or civil union partners]], the effects of the division of functions within the marriage [[or civil union]] include the effects of the division of functions within that de facto relationship.
(4) Except as provided in this section and section 64A,—
(a) neither party to a marriage [[or civil union]] is liable to maintain the other party after the dissolution of the marriage [[or civil union]]:
(b) neither party to a de facto relationship is liable to maintain the other de facto partner after the de facto partners cease to live together.]
Section 64(1) refers to s 64A which provides:
Spouses[[, civil union partners,]] or de facto partners must assume responsibility for own needs within reasonable time
(1) If a marriage [[or civil union]] is dissolved or, in the case of a de facto relationship, the de facto partners cease to live together,—
(a) each spouse[[, civil union partner,]] or de facto partner must assume responsibility, within a period of time that is reasonable in all the circumstances of the particular case, for meeting his or her own needs; and
(b) on the expiry of that period of time, neither spouse[[, civil union partner,]] or de facto partner is liable to maintain the other under section 64.
(2) Regardless of subsection (1), if a marriage [[or civil union]] is dissolved or, in the case of a de facto relationship, the de facto partners cease to live together, 1 spouse[[, civil union partner,]] or de facto partner (party A) is liable to maintain the other spouse[[, civil union partner,]] or de facto partner (party B) under section 64, to the extent that such maintenance is necessary to meet the reasonable needs of party B if, having regard to the matters referred to in subsection (3),—
(a) it is unreasonable to require party B to do without maintenance from party A; and
(b) it is reasonable to require party A to provide maintenance to party B.
(3) The matters referred to in subsection (2) are as follows:
(a) the ages of the spouses[[, civil union partners,]] or de facto partners:
(b) the duration of the marriage [[or civil union]] or de facto relationship:
(c) the ability of the spouses[[, civil union partners,]] or de facto partners to become self-supporting, having regard to—
(i) the effects of the division of functions within the marriage [[or civil union]] or de facto relationship while the spouses[[, civil union partners,]] or de facto partners were living together:
(ii) the likely earning capacity of each spouse[[, civil union partner,]] or de facto partner:
(iii) the responsibilities of each spouse[[, civil union partner,]] or de facto partner for the ongoing daily care of any minor or dependent children of the marriage [[or civil union]] or (as the case requires) any minor or dependent children of the de facto relationship after the dissolution of the marriage [[or civil union]] or (as the case requires) after the de facto partners ceased to live together:
(iv) any other relevant circumstances.
(4) If the marriage [[or civil union]] was immediately preceded by a de facto relationship between the husband and wife,—
(a) for the purposes of subsection (3)(b), the de facto relationship must be treated as if it were part of the marriage [[or civil union]]; and
(b) for the purposes of subsection (3)(c)(i), the effects of the division of functions within the marriage [[or civil union]] include the effects of the division of functions within that de facto relationship.]
The issue of past maintenance has to be addressed under the provisions of s 63 given that for the period that past maintenance is claimed, the parties were still married. 1
The Respondent argues that the parties signed a s 21 agreement on 18 December 2009 which was in full and final settlement of all claims. He agreed to an unequal division of relationship property in favour of the Applicant by taking over some $84,000 worth of debt and a slightly unequal division of the net proceeds of the sale of the family home, which he would not have done had he been aware that he could be subject to a claim for spousal maintenance.
As an alternative or secondary argument he says that the Applicant need not have utilised all of her $120,000 settlement to re-house herself and could have used some of those funds to help set herself up in business or to earn some form of
income. He also asserts that more than two years on from the separation, given that...To continue reading
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...CIV-2010-404-005682, 26 November 2010 28 At [29] 29 At [24] 30 As was the case, for example, in SAD v MSD North Shore Family Court, FAM-2010-004-000858, 4 Feb 31 FC Palmerston North, FAM-2007-054-000731, 18 December 2008, Binns J ...