This insight focuses on the grounds for awarding final maintenance orders in New Zealand. Interim maintenance is covered in a separate insight.
What are final maintenance orders?
Final maintenance orders require one partner to provide financial support to the other if certain qualifying grounds are met. These orders can be made:
- During a marriage or civil union; or
- After the dissolution of a marriage or civil union; or
- After the end of a de facto relationship.
Why are final maintenance orders made during a marriage or civil union?
In New Zealand, a marriage or civil union cannot be formally dissolved until at least two years after separation, unless there is family violence, in which case dissolution can occur sooner. During the period prior to dissolution, the couple is still considered legally married or in a civil union. If one partner applies for maintenance during this time, the application is treated as being made while the marriage or civil union is still in effect, even though the couple is separated.
How does relationship status affect final maintenance?
The relationship status of the partners plays a significant role in whether final maintenance will be awarded. It is generally easier to obtain final maintenance orders while still married or in a civil union. After the dissolution of a marriage or civil union, or immediately after the end of a de facto relationship, the process becomes more difficult.
1. During a marriage or civil union:
While a marriage or civil union is ongoing (i.e. before it is dissolved), each partner is legally required to support the other if they cannot meet their own reasonable financial needs due to a qualifying circumstance, such as being unable to work because of childcare responsibilities. If the lower-income partner can demonstrate financial need due to a qualifying reason, and the other partner has the means to help, the court may order final maintenance from the higher-earning partner.
2. After dissolution of a marriage or civil union, or immediately once a de facto relationship ends:
Once a marriage or civil union is dissolved (usually after two years), or once a de facto relationship ends, the expectation shifts. Each partner is generally expected to meet their own financial needs. However, final maintenance may still be awarded if a qualifying maintenance ground can be shown, and if it would be unreasonable for the higher-income partner not to provide some support. In addition to this shift in legal expectations, it becomes harder to claim final maintenance after dissolution because some of the grounds for final maintenance are removed. For instance, physical or mental disability, which qualifies for maintenance during a marriage or civil union, is no longer a ground after dissolution of a marriage or civil union, or immediately once a de facto relationship ends.
Why is there a difference between final maintenance claims during a marriage or civil union, vs. after dissolution or immediately after a de facto relationship ends?
The legal test for final maintenance is stricter after the dissolution of a marriage or civil union, or immediately after a de facto relationship ends. This higher threshold is meant to encourage partners to eventually meet their own financial needs after separation. While it may seem unfair for de facto partners to face a more difficult test immediately than that faced by married or civil union partners, the law currently maintains this difference.
What are the qualifying grounds for seeking final maintenance orders?
To qualify for maintenance, the lower-income partner must show that their inability to support themselves stems from one of the qualifying grounds outlined in the Family Proceedings Act 1980. Some of these grounds may not be available after the dissolution of a marriage or civil union, or immediately after a de facto relationship ends, as the grounds for claiming final maintenance are more limited in these situations. Below, we explore all of the grounds in detail, with real case examples.
1. Inability to meet reasonable needs due to the effect of the division of functions during the relationship:
This ground for final maintenance relates to how partners divide roles and responsibilities, particularly around household duties and career opportunities. When one partner takes on most of the caregiving and home management tasks, they often sacrifice career opportunities and their potential to earn a living. Meanwhile, the other partner typically becomes the primary breadwinner, which increases their earning potential.
As a result, the partner who took on homemaking duties may become financially dependent. After separation, they may struggle to meet their reasonable financial needs due to years spent out of the workforce and the challenges of finding suitable employment. If the homemaker partner can show that their financial difficulties are directly tied to their caregiving role during the relationship, where they were primarily responsible for domestic duties and childcare, they may qualify for final maintenance under this ground.
Example: McQueen v Penn
In McQueen v Penn, the court recognised that the wife’s substantial caregiving responsibilities during the marriage limited her job opportunities after separation. The judge found that her role as the primary caregiver not only impacted her ability to find work but also left her financially dependent and vulnerable after the relationship ended. As a result, the court determined she met the criteria for maintenance because her domestic responsibilities during the marriage made it difficult for her to meet her reasonable financial needs post-separation.
2. Inability to meet reasonable needs due to on-going responsibilities for the care of children:
This ground for final maintenance is similar to the previous one but typically applies to childcare responsibilities that arise after separation. While the previous ground focuses on the division of roles during the relationship, this one addresses the caregiving responsibilities post-separation.
If one partner takes on the primary responsibility for caring for the children after separation, it may reduce their ability to earn an income. In such cases, final maintenance may be justified if the caregiving partner is unable to meet their reasonable financial needs, and the other partner has the financial means to contribute support.
3. Inability to meet reasonable needs due to physical or mental disability:
A physical or mental disability that prevents a person from supporting themselves can serve as a valid ground for receiving final maintenance. This disability can be congenital, caused by an accident, illness, disease, or a deliberate act. The disability does not need to have occurred before or during the relationship; it may also arise after separation.
Example: Kinnear v Kinnear
In Kinnear v Kinnear, Mrs Kinnear was diagnosed with bipolar affective disorder, a condition that prevented her from working full-time and limited her ability to meet her own reasonable financial needs. Evidence of her condition, including medical records and testimony from her doctor, Dr Murray, confirmed the significant impact of her illness on her ability to work. As a result, Mrs Kinnear was awarded maintenance to support her financial needs.
4. Inability to meet standard of living enjoyed during the relationship:
A high standard of living during the relationship can lead to greater reasonable needs, making it harder for one partner to adjust to a lower standard after separation. In contrast, someone from a modest background may have more manageable needs after a split. Courts typically look at the couple’s lifestyle in the year or two before they separated to determine what is reasonable for them afterward. If the couple had a high level of spending, the court may view their reasonable needs as higher and allow for more discretionary spending when setting the amount of any final maintenance award. Rather than using a general societal standard, the court uses the couple’s lifestyle as a benchmark. Furthermore, the court may rely on this ground to award final maintenance to avoid a party facing a stark change in lifestyle after separation.
Example: McQueen v Penn
In McQueen v Penn, the court considered the couple’s expensive lifestyle during the relationship when determining maintenance. To prevent a sudden and significant drop in the applicant’s standard of living after separation, the court issued a maintenance order. While the court did not award an amount to replicate the applicant’s pre-separation lifestyle or spending exactly, it granted a maintenance amount that was considered reasonable to help maintain a similar lifestyle or meet a comparable level of needs, given the applicant’s need to adapt to her new circumstances post-separation.
5. Inability to meet reasonable needs due to lack of suitable work:
This ground for final maintenance applies when it is reasonable for a person to be unable to find suitable work given their specific circumstances. The court takes into account factors such as local job availability, the individual’s qualifications, and their geographical location. The court will not expect a person to accept just any job in the area but will instead consider employment options that are in line with their profession, experience, and stage of life. Additionally, unless their previous career required it, the court will not expect a person to relocate or travel long distances for work.
Example: Jones v Thomas
In Jones v Thomas, Ms Thomas faced challenges returning to her pest control job in the Coromandel due to false rumors about drug use, allegedly spread by her ex-partner, Mr Jones. These rumors damaged her reputation and made it difficult for her to find work in her area. Although she was close to obtaining a license for a more profitable position with the Department of Conservation, her prospects in the Coromandel were limited. After relocating to Auckland, her pest control skills became less relevant, leading her to focus on her studies instead of immediately seeking new employment.
The Family Court determined that Ms Thomas’s inability to find suitable work was reasonable given her circumstances and awarded her interim maintenance of $1,345 per week. On appeal, the High Court confirmed that Ms Thomas was eligible for maintenance but questioned whether she had sufficiently considered part-time work in Auckland. Since Ms Thomas was a student and had barista experience, the High Court concluded that working as a barista part-time was a viable option. The High Court decided that she had the potential to work part-time outside of her studies and reduced her interim maintenance to $760 per week, reflecting her ability to earn part-time income.
This case illustrates that while an inability to work can justify a maintenance claim, the claimant’s capacity to take on other reasonable roles—such as part-time work—must also be considered when determining the appropriate maintenance amount.
6. Inability to meet reasonable needs while undertaking education or training to increase earning capacity:
Final maintenance can be awarded if one partner is studying or training to improve their earning potential and it would be unreasonable to expect them to meet their own financial needs during this time. The training must be aimed at enhancing their earning capacity, and the partner is expected to complete the training within a reasonable timeframe. If the partner is training for a lower-paying career than their previous career, they will not qualify for final maintenance under this ground.
Additionally, for final maintenance to be awarded in these circumstances, it must be considered fair for one partner to provide financial support while the other partner undergoes retraining. This is usually deemed fair if the respondent partner benefited from education or training during the relationship while the applicant partner worked to support them, or if the division of responsibilities during the relationship otherwise justifies one partner’s contribution to the other partner’s retraining.
Example: D v D
In D v D, the wife had focused on household duties and childcare during the marriage. She sought final maintenance while completing a five-year computer training course to improve her earning capacity. The court found that the length of the course and the time required to complete it were reasonable given the wife’s circumstances, as she had to care for children while studying. The court also concluded that it would be unreasonable to expect her to manage part-time work, care for four children, and study without financial support from her ex-husband.
The court recognised that completing the training was essential for her long-term financial independence. Therefore, it would be unfair to expect her to meet all her financial needs on her own while studying. As a result, the court ordered final maintenance of $160 per week for the five years of her course. This decision reflected the court’s belief that it was reasonable for her to focus on retraining, and for her ex-husband to provide financial support during this time.
7. Inability to meet reasonable needs due to “any other relevant circumstance”:
The court can consider “any other relevant circumstances” that prevent a person from becoming self-supporting as a valid reason for awarding maintenance. This gives the court flexibility to account for unique factors that may affect someone’s ability to support themselves, even when the circumstances don’t fall under the traditional qualifying grounds for maintenance.
Example: Clayton v Clayton
In Clayton v Clayton, the court awarded Mrs Clayton maintenance because she was unable to access her share of the relationship property, which her husband controlled. Although previous courts had confirmed her right to the property, ongoing litigation prevented its division. The court noted that, had she had access to her share, she would have been able to support herself. However, the prolonged litigation, which lasted for several years, was considered a “relevant circumstance” that justified maintenance.
The court viewed this as an exceptional case, where the lengthy and costly litigation — caused by Mr Clayton’s refusal to divide relationship property — created a valid reason for awarding maintenance. The court used the “any other relevant circumstance” provision to allow for maintenance, even though the situation didn’t fit neatly into the usual maintenance grounds.
When are final maintenance orders decided?
Final maintenance orders are typically one of the last legal issues decided by the court, usually at the same time as the final division of relationship property. If one spouse or partner is unable to financially support themselves following the breakdown of the relationship, even after receiving their share of relationship property, they may also be eligible for a final maintenance order.
How long do final maintenance orders last?
Final maintenance orders are typically awarded for a specific period, ranging from a few months to several years. In rare cases, final maintenance may be ordered indefinitely. Temporary (interim) maintenance orders, which last up to six months, are also possible in certain situations. The specifics of interim maintenance are discussed in a separate insight.
Get the help you need with your final maintenance case:
This article provides an overview of final maintenance and the grounds for awarding it. There are additional legal tests and potential defenses, so expert support is essential when dealing with a claim. Fixed Dispute Resolution offers guidance tailored to your unique situation. Our team can help you navigate the process and ensure your rights are protected. Contact us today for professional advice and support.