AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
• where such a transaction could take place under the laws of that foreign country; and • where there were not significant adverse con - sequences (eg, tax or withdrawal penalties) that were imposed by the foreign country on such a transaction. 2.4 Spousal Maintenance Australian Approach to Spousal Maintenance Courts in Australia have the ability to make orders for spousal maintenance, whether on an interim or final basis, under the Family Law Act. There is no automatic entitlement to spousal maintenance under Australian law. The applicant for spousal maintenance must first establish that they are unable to meet their rea- If that threshold requirement is met, then the court must assess the capacity of the other spouse to make a payment towards the reason - able needs of the applicant, after allowances are made for the respondent’s own living expenses, child support and any liabilities relevant to the marriage that the respondent is also still meet - ing. By way of example, a court might assess a wife’s reasonable needs, find that she is unable to meet those reasonable needs because she has care of children of the marriage and cannot work, but then find that her husband does not have the financial capacity to pay her spousal maintenance having regard to his own obliga - tions to meet his personal living expenses, pay child support, and potentially pay – for exam - sonable personal needs, owing to: • a physical or mental incapacity; • care of a child of the marriage; or • another justifying reason.
ple – the mortgage on the home or leases for motor vehicles that the wife and children have the benefit of. Interim Spousal Maintenance Although the Australian courts have the power to make final orders for spousal maintenance (ie, continuing even after final property orders are made), such orders are relatively uncommon. Australian courts tend to approach matters on the basis of seeking a “clean break” between parties on a final basis. What often occurs is that the financially weaker party (commonly the wife, if she has left the workforce and has the care of children under the age of 18 years) receives a larger percentage of the assets by way of prop - erty settlement, but no ongoing spousal mainte - nance on a final basis. The making of interim orders, whether by infor - mal agreement, consent order or court order, is more common in the Australian scenario on an interlocutory basis and pending final settlement. Often that spouse maintenance takes the form of payments that a spouse has the benefit of, rather than simply being a payment of cash. By way of example, the financially stronger spouse might make payments for a mortgage over a home, loan liabilities against other assets, lease obligations on motor vehicles, school fees for children, and other outgoings for children and/ or the spouse. How Spousal Maintenance is Quantified in Australia Unlike child support (which operates under a statutory formula), there is no statutory formula or administrative scheme for the calculation of spousal maintenance under Australian law. It requires firstly an assessment of the reasonable weekly needs of the applicant spouse. This is not necessarily identical to the level of expenses
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