2020 – Does the 20th year of marriage mean an indefinite spousal support obligation?

Elisha Hale, LL.B (Hons) Dip.Division of Property, Divorce, Spousal Support0 Comments

With 2020 now upon us, it seems appropriate to consider the impact of reaching your twenty-year anniversary and what impact this may have on your spousal support obligations. The Spousal Support Advisory Guidelines suggest that where spouses have been together for twenty years or more, the duration of spousal support should not end at a specified point, in essence rendering the obligation to be indefinite.

However, the Courts will look at the particular circumstances of the spouses including the requirement to become self-sufficient, the standard of living that the spouse grew accustomed to throughout the marriage and the age and employment potential of the spouse claiming spousal support.

In the recent case of Cowan v Cowan (2019) , the parties were married for 21.5 years. The wife was an anaesthesiologist and associate professor earning over $300,000 annually, and her husband who claimed spousal support was a teacher earning $92,000 per year.  The husband claimed support for an indefinite period, on the grounds that he had sacrificed career opportunities for the benefit of the family and therefore suffered an economic disadvantage post separation.

The husband was unable to prove his claim that he had given up the opportunity of a promotion to a vice principal’s position with the judge finding that he had instead undertaken additional activities such as golfing, vacations, and assisting with children’s sports teams in his time out of work, while relying heavily on the maternal grandmother’s assistance with their children. He made the decision without discussion with his wife to refrain from further education and application for a promotion.

The Court was clear in reiterating that any difference in two spouses’ income does not mean that a spouse will automatically be entitled to support. The Court will not bind the paying party to fund a lifestyle that their spouse was accustomed to for an indefinite period, even where the marriage has lasted twenty years or more. Rather, the Court will consider the individual circumstances and award a sum which is reflective of the marital union.  In this case, the husband admitted that the marriage had effectively been over for 15 years and they had been living separate lives both socially and financially; showing that they were not operating a ‘joint venture’ throughout this time.

The Court recognized that he had a significant amount of debt and financial expenses which he was not able to cover post separation and the Court awarded limited term support for five years to promote self-sufficiency and a clean break between the parties, while balancing the needs of the husband.

In summary, although the 20 year mark is an advisory guideline for indefinite support, regardless of the length of the marriage, spouses must establish entitlement, and cannot simply assume that marriage creates an indefinite, guaranteed income solely on the basis that their spouse earns a higher salary.

If you have any questions regarding the above or require legal representation in respect to family law, spousal support, division of property or separation and divorce, please contact us for an initial consultation.

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About the Author
Elisha Hale, LL.B (Hons) Dip.

Elisha Hale, LL.B (Hons) Dip.

Articling Student since September 2019, with a particular interest in business disputes, family law and mediation. Bio | Contact

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