In New Zealand, after a separation you can claim spousal maintenance from your former partner, if you cannot support yourself and your partner is financially able to pay maintenance.
There are different rules for spousal maintenance claims depending on whether the individuals are still married, separated or divorced.
Maintenance rules also apply to de facto relationships. An important difference is that the maintenance rules that apply are those that apply after a marriage has been dissolved, i.e. a divorce.
Here we will explain the rules that apply after a marriage has ended, before dissolution of the marriage (i.e. you have separated but are not yet divorced).
How is spousal maintenance calculated?
To be entitled to spousal maintenance, you need to demonstrate that maintenance is necessary to meet your reasonable needs. Your eligibility for spousal maintenance is calculated based on the following factors:
- Your ability to become self-supporting: taking into account the division of roles and responsibilities within your relationship, the likely earning capacity of each party, and other relevant circumstances.
- Any responsibilities for daily care of any minor or dependent children of the relationship.
- Your standard of living while you were living together.
- Any physical or mental disability.
- Any inability to obtain work that is reasonable in all the circumstances for that person to do and is adequate to provide for that person.
- Undertaking a course of educational training that will increase your earnings or eliminate the need for maintenance.
Often the circumstances will be a mixture of these factors.
What is reasonable spousal maintenance?
Your “reasonable needs” does not mean the basic necessities of life; instead it will usually be determined with reference to your standard of living before the separation.
Spousal maintenance example – “reasonable needs”
For example, in a 2010 High Court judgment, RK v DK [2011] NZFLR 468, the couple had enjoyed a luxurious lifestyle. This was therefore the touchstone for the maintenance award as the former husband could afford to pay a high amount of spousal maintenance.
After an initial period, the maintenance increased to $9,250 a month until an end date and the ex-wife was also entitled to maintenance for cosmetic dental work.
Interim spousal maintenance
‘Interim spousal maintenance’, or ‘urgent spousal maintenance’ is a temporary arrangement to provide financial support pending the finalisation of proceedings.
If a claim has been made for spousal maintenance, then the Family Court has jurisdiction to make an interim maintenance order. The judge has a wide discretion to determine the amount of maintenance payable until a final maintenance order is made.
Spousal maintenance examples – “interim spousal maintenance”
FH v LH [2013] NZHC 1044 is a case which the judge described the circumstances as a nearly classic case for a maintenance award:
- The couple had separated after a 19-year marriage.
- The wife applied for interim spousal maintenance as she had no income other than interest payments from her trust.
- She needed to retrain and was unable to find employment for at least six months.
- The judge found that the wife’s income was insufficient to meet her reasonable needs and ordered interim maintenance.
Another interim spousal maintenance example is Able v Able [2020] NZHC 177.
- The wife stopped working so that she could raise the couple’s two children while her husband continued in his successful career.
- Their marriage ended after 11 years.
- The Family Court awarded interim maintenance of $1,200 per week and $12,000 per month towards the wife’s legal costs.
- The High Court upheld the orders made by the Family Court, finding that an offer by the husband to make an interim distribution of relationship property was conditional and therefore did not impact on the payment of spousal maintenance.
Shine Lawyers can help
If you need help securing spousal maintenance or understanding your rights after separating, our experienced relationship property lawyers can help.
Shine Lawyers New Zealand has a wealth of experience in representing clients going through separation and we are driven to achieve the best result possible for each client; ensuring you get the outcome you need to move forward with your life.
Contact us today to organise an obligation-free consultation to discuss your options.
