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This book is only available in PDF format

Author: Helen Radinovich
Published: 31 March 2025
Pages: 19

Introduction

Spousal maintenance is an area of the law that is generally well settled,1 but it does change overtime to reflect society’s attitudes and expectations. This paper aims to update you on the developments from four recent High Court appeals on maintenance.

The most interesting advances in recent years arise out of the Family and High Court’s willingness to reach wider into a respondent’s assets, where the husband (or wife) is claiming that their income is insufficient to meet an order of maintenance. Discussed below is a 2024 High Court case which confirms that the courts do not require a trust to be “legally controlled” by the husband in order to find that trust funds are available to him. The High Court in a 2023 decision did draw the line however, where the trust was an intergenerational one settled and funded by the husband’s parents, and where another trust consisted of the husband’s separate property. The trust must be settled by the parties themselves or trusts that have been directly benefited by the parties.

Another interesting area of development is the court’s continual tug of war between allowing legal and accounting costs in a maintenance award, contrasted with preferring an applicant to receive an interim distribution to meet them. A recent High Court decision confirms a clear preference for the latter. That case also put paid to the argument that legal fees can be dealt with in a subsequent costs award.

As well as the two topics above, the recent appeals also cover a party’s reasonable needs, delay in bringing an interim maintenance claim and an overseas marriage contract and the arguments around whether it precluded a claim for maintenance.

Content outline

  • Summary of the law
  • “Insufficient income” but access to trust capital
  • Legal and accounting costs
  • Reasonable needs
  • Applicant’s means
  • Overseas marriage contract precluding spousal maintenance claim
View contents page
RADINOVICH Helen    
Helen Radinovich
Hobson Chambers
Auckland		    

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