Under the Divorce Act (1985) a spouse applying for a divorce may make an application for spousal support. The Divorce Act sets out four factors which will assist in determining whether a spouse is eligible for spousal support. These factors are:
- Economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- Any financial consequences arising from the care of any child of the marriage;
- Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- Promote the self sufficiency of each spouse within a reasonable period of time
In determining whether a spouse is eligible for spousal support, many factors must be reviewed. The one factor that is not relevant is the conduct of the spouses. The factors that are relevant include the following:
- The length of the marriage;
- The role of each party within the marriage;
- The income earning ability of the Applicant's spouse;
- The needs of the Applicant spouse;
- Whether the Applicant spouse left the work force during the marriage and if so, for how long; and
- Whether the Applicant spouse is able to return to the work force.
Once it is determined that a spouse may be eligible for spousal support, the next issue is the duration of spousal support, the amount of spousal support and whether the amount shall be paid each month or in one lump sum and whether or not the support obligation will be secured. Spousal support paid pursuant to a written agreement or Court Order is tax deductible to the payor and is taxable income to the recipient.
The Federal Government has published a non-binding guideline known as the Spousal Support Advisory Guidelines (SSAG) that set out ranges and terms of spousal support. The Family Law Act, 2005
allow non-married spouses and adults who are in an interdependent relationship (as defined in the Adult Interdependent Relations Act, 2003
) to apply for spousal support. The law requires that common law/adult interdependent relationship spouses who have no children must have lived together for 3 years continuously to be eligible to apply for spousal support. Where a child has been born to common law/adult interdependent relationship spouses, a common law/adult interdependent relationship spouse may apply for spousal support provided they have lived in a marriage-like relationship.
The lawyers at Foster LLP will fully discuss any issues related to spousal support with our clients including entitlement, quantum (amount) and duration.