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Spousal Maintenance: Raine & Creed [2015] FamCAFC 133

This case involved an application by the wife for the payment of spousal maintenance by the husband.

Prior to the breakdown of the relationship the husband obtained income protection insurance.

The husband suffered from alcoholism for the duration of the relationship and towards the end of the relationship he was diagnosed and was being treated for depression.

After separation the husband made a claim on his income protection insurance regarding his severe depression. The husband received an initial payment of $135,495.32 as well as a future disability payment of $3,756 per week.

The husband’s insurance policy provided for the husband to receive payments up to the age of 70 years but that the insurer could, at any time, cease payments if they determined the husband was only partially disabled, or was able to resume work.

The trial judge held the husband was likely to receive income from the insurer for some time but it was more likely than not that it would not be until he reached the age of 70.

The trial judge ultimately found that as long as the husband was receiving his disability payment, he had capacity to pay the wife spousal maintenance. However, his Honour held that:

… It is appropriate that the wife have financial support as she adjusts to her new circumstances and determines her future course … and the husband, on the other hand, has the possibility [of] a significant income until he reaches the age of 70. I have earlier found that it is, however, more probable than not that the payments will cease or diminish in the future. I do not think it appropriate to make an order for maintenance for an indefinite period. A period of fours [sic] years will give the wife time to adjust to her new circumstances and for her lifestyle not to be suddenly affected.

The trial judge made an order for the husband to pay the wife spousal maintenance in the sum of $534 per week until the end of April 2017.

The wife appealed this decision.

The Full Court of the Family Court held that the limit of four years was “entirely arbitrary and unsupported by any view of the evidence” and “in reality there is a lack of adequate reasons”.

The Full Court found that “the [trial judge’s] error is also compounded by his Honour’s failure to raise the proposal of a four year limitation with the wife or her counsel; that is a clear denial of natural justice.

The Full Court made an order for the husband to pay the wife spousal maintenance in the sum of $534 per week for so long as the husband continues to receive disability insurance payments on the basis of a total disability.

By Nicholes Family Lawyers


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