Simpson v Morton [2020] NZDC 5102

Published 16 February 2021

Application for spousal maintenance — reasonable needs — ability to pay — relationship debts — COVID-19 — Family Proceedings Act 1980, ss 63, 64, 64A, 65, 70 & 167 — Property (Relationships) Act 1976, s 20 — Morton v Simpson [2019] NZFC 6909 — B v B [2004] NZFLR 127 (FC) — Williams v Williams [2017] NZFC 4533, [2017] NZFLR 999 — C v G [2010] NZCA 128, [2010] NZFLR 497 — Slater v Slater [1983] NZLR 166 — Z v Z (No 2) [1997] 2 NZLR 258. This was an application for past and future spousal maintenance from the applicant's former husband for the amount of $334,786. Sections 63 and 64 of the Family Proceedings Act (FPA) are the relevant sections for determining spousal maintenance prior to dissolution (s 63) and maintenance after dissolution (s 64). Each party is liable to maintain the other party's reasonable needs where that party cannot practicably meet the whole or any party of those needs because of one or more of the circumstances specified in sub (2) of those sections. The circumstances include: ability to be or become self-supporting; childcare responsibilities; standard of living while living together; physical or mental disability; inability to obtain reasonable work that provides adequate support; further education or training rendering support unreasonable. The parties had been married some 14 years and had two children together. The applicant mother had initially worked but had been out of her profession for seven years caring for the children. She had also set up a business for which the respondent also worked but the business was placed into liquidation following financial issues. Following separation, the applicant lived with the two children (on a 5-2 basis) in state-subsidised accommodation and the father lived in a rental paying market rent. The mother had started postgraduate studies, she claimed, to increase her ability to find gainful employment, but had not attempted to find employment prior to commencing further studies. The father's earnings in the few years prior to the hearing had fluctuated and, due to the impact of COVID-19, his income was set to reduce significantly for the upcoming tax year. The Judge concluded that the respondent would be unlikely to be able to meet the claimed amount. He had also assumed sole responsibility for paying relationship debts after separation which should have been paid by both parties, and his debts exceeded his assets. It was unreasonable for the applicant to expect maintenance payments when, given the profession she had trained in, she would be perfectly able to secure adequate employment without having to obtain further qualifications. The Judge declined to make any award for spousal maintenance in favour of the applicant, and dismissed the application. Judgment Date: 6 July 2020. * * * Note: names have been changed to comply with legal requirements. * * *