Deciding whether to apply for spousal maintenance (or spousal support, as some people call it) is a reasonably regular decision to make as part of the separation process.

There are, however, a few situations where the Court will not likely give you orders for spousal maintenance.

In this article, we’ll talk about three situations when spousal support might be denied. However, we should stress that these are examples and not always decisive – you should get advice for your circumstances before deciding that you’re not eligible for spousal maintenance.

If You Don’t Really Need It

The fundamental starting point of any application for spousal maintenance is that the person seeking it needs it.

Now, that “need” might arise as a result of different circumstances. The need could be because of having the care of a child, it could be because of inability to get a job, or it could be for other reasons.

But at the absolute most basic level, you need to demonstrate that you cannot support yourself “adequately”. If you cannot, your application for spousal support is likely to be denied because you do not meet the basic test set out in the Family Law Act:

A party to a marriage is liable to maintain the other party… if, and only if, that other party is unable to support herself or himself adequately …:

So the question becomes: how can you show the Court you cannot adequately support yourself?

Typically this will be through sworn evidence by affidavit. You will have to declare your financial resources together with the reason (or reasons) that you believe you cannot support yourself.

Of course as we set out in this article, that does not mean that you must demonstrate you are destitute to get spousal maintenance. What is “adequate” will vary from case to case, but if you are unable to get across this threshold, your application will probably not be successful.

If Your Ex Can’t Actually Afford It

Once you show the court you cannot adequately support yourself the court will then consider your ex’s ability to pay spousal maintence.

The Family Law Act makes it clear that your ex’s capacity to pay is going to weigh significantly on the outcome of your application. It says:

A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so…

Unfortunately, just because you need a particular amount of financial support does not always mean that your ex is in a position to provide it.

After all, with losing the likely financial efficiency of living together, you will both have greater expenses and needs in total than when you were living together. If you were in a tight financial situation previously, it’s going to be potentially problematic for your ex to provide financial support.

If the party from whom you are seeking spousal support can demonstrate to the Court that they have literally no available resources to make any kind of maintenance, your application for spousal support will probably be denied.

Bear in mind the Act does not require your former spouse to provide all  of the financial maintenance you need.

So let’s say you need $200 each fortnight to make ends meet. You apply to the Court for an order that your spouse contributes that amount to you. They manage to convince the Court that they don’t have the ability to pay $200 per fortnight. The Court does find, however, that they can provide $125 per fortnight. The Court can then order they pay that amount. And even though that might not provide you with everything you were seeking, it is still a contribution and is one “to the extent” your ex can pay it.

If You’re Found to have Lied about your Situation

Sometimes in Family Court proceedings people to try and hide relevant financial information from their lawyer and the Court.

One of the worst things that can happen in any Court proceeding is the Court deciding that you are a dishonest witness because you have filed misleading evidence after giving your family lawyer misleading instructions.

So, let’s say you have a $100,000 nest egg, which you decide to transfer to your mother for “safe keeping” and you fail to disclose this to your lawyer. Instead you instruct your lawyer that you have no money and need spousal maintenance. Your lawyer then prepares your affidavit evidence relying on these misleading instructions and files this with the court.

During the proceedings the Court becomes aware of the transfer to your mother and the fact that you actually have ample means available to you.

In this particular case, not only is that going to mean you will potentially fail the “adequately” test we set out above, it will have the far worse effect of the Court making an adverse finding of credit.

That is – the Court will find that you are an untruthful witness and reject your evidence. In a best case, the Court will only reject your evidence on that point.

But on a worse case, this finding could have dramatic flow-on effects that impact the entire separation process, especially if the Court is in a position of having to determine between your evidence and that of your ex. After all, if the Court has nothing else to go on then it’s going to look at the fact that you were prepared to file a misleading affidavit previously, and will likely find you to be the less truthful party.

If you are concerned about a particular asset or income stream resulting in your spousal support application being denied, then have a chat with your family lawyer about how best to tackle it rather than trying to hide it.

Concerned about Spousal Maintenance Being Denied?

The best way to approach any need for spousal maintenance is to have a detailed discussion with your family lawyers before making an application.

They can ensure that you are putting all the necessary facts to the Court, let you know any challenges you might face, and make comprehensive submissions on your behalf to deal with any tricky spots.

Give us a call if you need help.