Although not many people would claim they need $20,000 a month for personal and household expenses, including $6,500 for groceries, this is what has been sought from Justice Forrest in the Brisbane Registry of the Family Court of Australia.
This claim was argued by the husband to be spousal maintenance. A party to a marriage or de facto relationship (post 1 March 2009) is liable to maintain the other party, to the extent that they are reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
- by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
- by reason of age or physical or mental incapacity for appropriate gainful employment; or
- for any other adequate reason,
having regard to any relevant matter referred to in subsection 75(2) of the Family Law Act 1975.
In this claim, the husband and the wife were married for almost 20 years and are now fighting over properties, companies and other assets valued at over $200 million, $27 million of which is in Australia.
It is claimed that the 60 year old mother of five has managed and operated the Australian companies and assets during the parties’ marriage. However, since August 2015, as a result of Orders made by the Court, she had been restrained from making payments on behalf of the companies in excess of $1,000 without the husband’s agreement.
The wife told the Court that the companies have business expenses that regularly exceed $1,000 and in the past she has paid her personal expenses of around $20,000 a month from the entities as “wages” to herself. Since August 2015 she argued she has not been able to appropriately run the companies, meet her living expenses (and those of her adult children) or pay her legal costs.
She asserted the husband had access to $700,000 cash in his bank accounts and had bought an apartment overseas for his girlfriend.
Justice Forrest said this was not a case where the wife was seeking the husband pay her $20,000 a month by way of spousal maintenance. Rather, it was an application to vary the restraints imposed on the wife so that she could access company funds.
He determined that:
- given the wealth of the parties (in excess of $200 million);
- the husband’s concession that he had capacity to provide for the wife and the children financially; and
- that in the past the husband permitted the wife to incur significant personal expenses
there was no reason to be frugal now.
Justice Forrest did agree with the husband that the amount of $20,000 a month was excessive and unreasonable. However, he granted injunctions on both parties and enabled the wife to access $15,000 a month for her personal and household expenses from company money. He also ordered for each party to receive $200,000 for their legal costs given the enormous amount of capital the parties own.
Justice Forrest rejected the husband’s suggestion that the wife’s claim for $20,000 a month should be determined pursuant to the law surrounding spousal maintenance. This argument by the husband, had it been accepted by His Honour would have been advantageous for the husband because in Australia, as set out above, the legislation says that spousal maintenance should be paid where one party is reasonably able to support the other party if that party cannot adequately provide for themselves.
But what does 'adequately' mean?
Is it adequate for the party to have a roof over their head, food to eat and clothes to wear, or does it mean they need to be supported in the lifestyle to which they have become accustomed?
Adequacy is a relative term, and one person's notion of adequacy may be different from the next. While subsistence may be adequate for some people, the Court often considers a couple's previous standard of living when determining whether an amount of spousal maintenance is adequate.
One of Australia's 'big money' maintenance cases is that of Wilson and Wilson, decided in 1989. This couple had a multi-million dollar business enterprise, with net assets of $45 million. The wife claimed interim spousal maintenance of $2,750 per week, plus a lump sum of $200,000. The Court had to consider whether to 'fix' the amount of money payable to the wife, which would reduce the standard of living she had enjoyed pre and post-separation, pending the outcome of the case, while the husband continued to live lavishly.
The Court awarded the wife $900 per week maintenance, with a lump sum payment of $100,000, until the finalisation of the case - less than half of what she applied for. The Court also said that a reasonable standard of living for the party seeking maintenance on an interim basis is not necessarily the same as that of the person paying. The standard does not have to be the same as during the marriage.