Under the Family Law Act a Court may make such order that it considers “proper” for the provision of maintenance. This means that the Court has a discretion both as to whether maintenance should be ordered and, if so, as to how much should be ordered. It is a discretionary power.
Under the Act, a party to a marriage is liable to maintain another party to the extent that the first party is reasonably able to do so and the second party is unable to support him or herself adequately:
a. Due to having care or control of a child of the marriage under the age of 18;
b. Due to age or physical or mental incapacity for appropriate gainful employment; or
c. For any other adequate reason.
Having regard to a list of factors, including:
1. The age and health of the parties;
2. Whether either party has the care or control of a child of the marriage under the age of 18;
3. Commitments of each party necessary to support him or herself and a child that the party has a duty to maintain;
4. A standard of living that in all the circumstances is reasonable;
5. 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; and
6. The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
Case law provides that the term “adequately” is not a fixed standard. It is not subsistence level. An applicant is not entitled to live at a level of consideration luxury just because the other party is very wealthy. Where possible, both spouses should continue to live after separation at the level that they previously enjoyed.
The Court would assesses "earning capacity". The applicant needs to provide evidence as to the attempts to find employment. The Court may find that the applicant has earning capacity, but it may find that the applicant’s earning capacity is less than the income received. It would then need to assess whether the applicant has the capacity to support him or herself adequately.
When a Court determines capacity to pay maintenance, it will take into account income, property and financial resources of that party. It may be necessary to show that the income of that party does not exceed that part's reasonable expenses in order to show that there is no capacity to pay maintenance. There is no mathematical formula and the Court's power is discretionary.
Please do not hesitate to contact your Nevett Ford representative with any questions about this article or Family law matters.
