Rela­tion­ship break downs — how do you sort out maintenance?

So, we have a rela­tion­ship break down – how do we sort the maintenance?

It is one of the most chal­leng­ing aspects of fam­i­ly law – who gets what and who owes whom — when a rela­tion­ship breaks down and main­te­nance is being negotiated.

Con­sid­er this arti­cle as an overview and check­list to help you nav­i­gate your way to a solution.

• What is Spousal Main­te­nance / De Fac­to Part­ner Maintenance?

Spousal main­te­nance or de fac­to part­ner main­te­nance refers to a pay­ment made by one par­ty to the oth­er to assist them to meet their expens­es. A spouse and a de fac­to part­ner (includ­ing a same sex part­ner) may seek main­te­nance; how­ev­er par­ties do not have an auto­mat­ic right to main­te­nance and can only be paid with the agree­ment of the oth­er par­ty or by obtain­ing Court orders pro­vid­ing for same.

• What is required? It’s all about the documents:

When deter­min­ing if a par­ty should receive main­te­nance, the Court assess­es his or her abil­i­ty to ade­quate­ly sup­port them­selves (‘need’) and the oth­er par­ty’s abil­i­ty to pay (‘capac­i­ty’). As this is done on the basis of doc­u­ments pro­vid­ed to Court, it is impor­tant for both par­ties to pro­vide their lawyers with detailed infor­ma­tion regard­ing their income, expens­es, assets and lia­bil­i­ties.

Your infor­ma­tion should include:

• Employ­ment con­tract or let­ter of offer from the employ­er, includ­ing doc­u­ments show­ing what ben­e­fits and bonus­es are paid;
• Pay slips or oth­er doc­u­ments show­ing your cur­rent income/​s;
• Infor­ma­tion about your work his­to­ry (such as a resume);
• Bank state­ments and cred­it card statements;
• If you are not in the work­force, the like­li­hood of you becom­ing employed (such as job appli­ca­tions or rejec­tion let­ters) and / or the costs and time of retraining;
• Invoic­es and receipts for the pay­ment of expens­es such as rent, food, elec­tric­i­ty, gas, petrol, insur­ances, enter­tain­ment, and so on.

Oth­er things to consider:

1. Need is not nec­es­sar­i­ly based on the expens­es a par­ty cur­rent­ly incurs. For instance, if a par­ty’s spend­ing pat­terns have changed because of the sep­a­ra­tion, it is not unrea­son­able to take into account expens­es they would typ­i­cal­ly have incurred pri­or to sep­a­ra­tion. Con­verse­ly a par­ty can­not claim expens­es for which need or a pre­vi­ous pat­tern of expen­di­ture can­not be established.
2. A par­ty is usu­al­ly not required to sell or deplete exist­ing assets in order to sup­port him­self or her­self. How­ev­er, this is a mat­ter of bal­ance and reasonableness.For exam­ple, if it can be shown that a par­ty has sub­stan­tial funds in a bank account but is claim­ing fur­ther sums for main­te­nance, the Court may not nec­es­sar­i­ly make an order for main­te­nance because that par­ty can main­tain him­self or her­self and the amounts in the bank account expend­ed can be tak­en into account at the end of the day.
3. When deter­min­ing need, it is impor­tant to note that spousal main­te­nance is not the same as child sup­port. The break­down of expens­es for a par­ty should sep­a­rate­ly iden­ti­fy the expens­es of the child/​children. While this may some­times be an arti­fi­cial esti­mate (for instance, how much of an elec­tric­i­ty expense has been incurred due to the child/​children), it is impor­tant to make these dis­tinc­tions clear.
4. Capac­i­ty is not nec­es­sar­i­ly assessed on a par­ty’s cur­rent income. If a par­ty is prac­ti­cal­ly able to earn an income but delib­er­ate­ly choos­es to be under­em­ployed or unem­ployed so that they will not be ordered to pay main­te­nance, the Court has the dis­cre­tion to deter­mine that the par­ty has capacity.
5. The receipt of any gov­ern­ment ben­e­fits is dis­re­gard­ed as ​‘income’ for the pur­pos­es of spousal maintenance.
6. Just because one par­ty has the capac­i­ty to pay does not mean he or she has to pay his or her sur­plus income to the oth­er par­ty. If the Court finds that one par­ty can­not estab­lish need, it is irrel­e­vant how much capac­i­ty the oth­er par­ty might have in the deter­mi­na­tion of a main­te­nance claim as the oth­er par­ty will not be required to pay maintenance.

• Why is this important?

Inter­im main­te­nance is some­times ordered by the Court to be paid for a peri­od of time between sep­a­ra­tion and the final­i­sa­tion of the par­ties’ finan­cial mat­ters. Main­te­nance can also be paid after final set­tle­ment until a cer­tain ter­mi­nat­ing event occurs.

Due to the size of the cur­rent Court lists, cas­es are tak­ing longer to be heard by a Judge. It is there­fore not uncom­mon for it to take upwards of 18 or even 24 months before par­ties have a defend­ed final hear­ing of their case.

At Swaab, we urge you to seek advice as to your rights and oblig­a­tions as soon as pos­si­ble. This is very impor­tant, espe­cial­ly if you are the par­ty seek­ing spousal main­te­nance. Delays in the final res­o­lu­tion of a case may have a sig­nif­i­cant impact on your finan­cial position.

We can advise you so that you can bal­ance what you are seek­ing with your pro­ject­ed legal costs and are able to advise you as to what is appro­pri­ate in all the circumstances.