The first issue is who is a “spouse” or “same-sex partner”. At present, a spouse is defined for purposes of support obligations as either a:

1. married spouse; or

2. either of a man and woman not married to each other, who have cohabited continuously for a period of not fewer than three years, or in a relationship of some permanence, if they are the natural or adoptive parents of a child.

A “same-sex partner” is defined in the Family Law Act as meaning either of two persons of the same sex who have cohabited continuously for a period of not fewer than three years, or who is in a relationship of some permanence, if they are the natural or adoptive parents of a child.

Sometimes, it is not obvious that a spousal or same-sex partner relationship exists. The factors to consider in determining whether a such a relationship exists include the following:

1. shelter – was it exclusively shared by the parties, and what were the sleeping arrangements?

2. sexual and personal behaviour – was there a sexual relationship and an attitude of fidelity? Did the parties share meals and occasions?

3. services – did the parties divide and/or share household responsibilities?

4. social – did the parties socialize together, both in their personal and work lives, and if so, were they accepted as a couple?

5. economic support – did the parties acquire and maintain property together, and did they share in the related financial responsibilities? Did the parties divide and/or share the responsibility for payment of household and other expenses? and

6. children – did the parties have children and what was the attitude and conduct of the parties towards the children?

The second issue is whether a spouse or same-sex partner is entitled to spousal support. As most often considered by the courts, the purposes of support include the following:

1. recognize the spouse’s or same-sex partner’s contribution to the relationship and the economic consequences of the relationship for the spouse or same-sex partner;

2. share the economic burden of child support equitably;

3. make fair provision to assist the spouse or same-sex partner in becoming economically self-sufficient; and

4. elieve financial hardship, if this has not been done by orders related to property and the matrimonial home.

In making an order for spousal support, a court is entitled to take into consideration the condition, means, needs and other circumstances of each spouse or same-sex partner and of any child of the marriage for whom support is sought, by reference to factors including:

1. the length of cohabitation;

2. the functions performed by the spouses or same-sex partners during the cohabitation;

3. the effect on the spouse’s or same-sex partner’s earning capacity and career development of the responsibilities assumed during cohabitation, including childcare;

4. commitments to support financially children over the age of eighteen years of age, who are unable to withdraw from parental control, for reasons including education; and

5. any other legal right to support, other than from public money.

Significantly, in making an order as to spousal support, a court is not entitled to take into consideration any misconduct of a spouse in relation to the relationship, unless there is a course of conduct that is unconscionable. For example, it will be irrelevant if adultery has taken place.

The third issue is the amount of the spousal support obligation. This issue is often one of the most difficult to resolve. The starting point is for separated spouses to complete a court form financial statement which includes detailed budgets, one actual and one proposed. These comparative budgets allow for an analysis of the standard of living maintained while the relationship was intact, and of that contemplated subsequent to separation. Ideally, a consistent standard of living can be maintained by both spouses and the children, despite the separation. In most situations, though, there is not enough money to support both households in this way and both spouses will experience a reduction in their standards of living. To achieve some measure of consistency, spousal support may be payable by one spouse to the other spouse. Because child support is payable in priority to spousal support, however, the payor spouse may not be in a financial position to pay spousal support as well as child support. In these difficult cases, it may be that a recipient spouse will merely have a confirmed entitlement to spousal support, without an amount actually payable on account of it. As circumstances change, it may be that an amount of spousal support can become payable, as a result of a variation of the initial obligation.

If there is an ability to pay the spousal support owing, the amount is determined by taking into consideration the needs and means of the spouses, in conjunction with the value of their respective assets. In some cases, a spouse may be entitled to spousal support, but if he or she owns assets having significant value, it may be that the income expected to be earned from those assets is such that spousal support is not, additionally, payable. In other cases, this income stream serves only to reduce, but not to replace, the amount of spousal support payable. To quantify spousal support, the amount of the shortfall in the recipient spouse’s expenses less his or her own ability to satisfy payment of those expenses is considered, in conjunction with the payor spouse’s ability to make-up that shortfall. The reasonableness of expenses and the amount of spousal support payable will depend upon the circumstances of each relationship.

The next issues to consider are the method of payment and the duration of spousal support. Spousal support is, generally, presumed to be payable on a monthly basis. However, depending upon the circumstances spousal support may be payable in a lump sum amount. There are often advantages to paying spousal support on a lump sum basis, including the following:

1. once the lump sum amount is paid, the obligation of spousal support is satisfied, without an ongoing connection between the spouses. In this way, both spouses may then obtain some closure;

2. a lump sum amount, as opposed to a monthly payment, is not taxable in the hands of the recipient spouse (nor is it deductible to the payor spouse). At the same time, the recipient spouse has a lump sum amount available which he or she can immediately use and factor into plans;

3. once the lump sum amount is paid, the payor spouse may obtain a release from the recipient spouse from further obligations of spousal support. In this way, the payor spouse avoids or considerably reduces the risk of later claims by the recipient spouse to vary the spousal support arrangements earlier agreed upon. Note that releases of spousal support obligations may not be iron-clad, depending upon the circumstances, and ongoing judicial rulings; and

4. having a “bird in the hand”, thereby avoiding the risk of defaults in payment obligations. This consideration will be particularly important where a payor presents a “flight risk” or has a poor history of complying with financial obligations.

If spousal support is paid on a monthly basis, rather than as a lump sum amount, one of the critical issues will be the duration of the obligation. The tendency in the courts is towards indefinite obligations of spousal support rather than those which are time limited. This tendency will be present where:

1. the marriage is of considerable length;

2. there are children of the marriage, involving some career compromises or sacrifices on the part of the recipient spouse;

3. there is some uncertainty as to the ability of the recipient spouse to become financially self-supporting; and

4. the health of a recipient spouse is poor or uncertain.

Significantly, the amount and duration of spousal support is, typically, subject to variation by reason of a material change of circumstances. This change may be related to the marriage and/or its breakdown. For example, a spouse may have child-related obligations which hinder becoming self-supporting as initially expected. In other situations, significant unexpected health or economic changes take place, leaving a spouse with no alternative but to ask for a variation of a spousal support obligation. These situations may be more difficult to resolve than those specifically considered in establishing the initial obligation. This risk of an ongoing spousal support obligation being subject to variation is a main reason why many payor spouses prefer to pay a lump sum amount, where appropriate, in conjunction with obtaining a release from the recipient spouse.