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Accident Compensation Cases

B v N (FAMC, 21/08/07)

Judgment Text

JUDGE P J CALLINICOS (reserved):
Introduction 
[1]
Mr B filed an application under s 63 of the Family Proceedings Act 1980 seeking spousal maintenance against the respondent, his wife T V N. At the hearing on the 11 April 2007 a preliminary jurisdictional issue arose as to whether Mr B was able to commence the application by virtue of him being an undischarged bankrupt, having declared voluntary bankruptcy in September 2005. 
[2]
I have received submissions from each party and am grateful to them for the high quality of them. This has been of assistance to me given that there are apparently no previous cases known to the parties, or to the solicitors for the Official Assignee, where an undischarged bankrupt has sought an order of spousal maintenance under the Family Proceedings Act. 
Background 
[3]
The parties were married on 27 November 1993 and separated in September 1999. The parties had one child of their marriage, J, who is now 13 years of age. He has been in the primary care of the applicant since separation. 
[4]
The applicant commenced a mail-order business and conducted that on a part-time basis. It was a struggle for him financially as he was, he says, providing for J with no financial support from the respondent. 
[5]
In early 2005 the respondent sought a division of relationship property. I have been provided with little detail as to the history of the division or the outcome of it. It is sufficient to say that the applicant holds an acetic view of the respondent's claim for any share of relationship property. 
[6]
What is known is that in the latter part of 2005, Mr B was made bankrupt on a voluntary basis. In December 2005 he was advised by the Official Assignee that the former family home would be sold, with the home eventually being sold in July 2006. Ms N received $52,000 as her protected share from the home. 
[7]
At the date of the hearing the applicant remained an undischarged bankrupt. 
Position of parties on preliminary issue 
Applicant's position 
[8]
The applicant argues that the effects of bankruptcy do not extend to cover personal actions between spouses. He refers to certain family law statutes, such as the Child Support Act 1991 and the Marriage Act 1955 as not placing any restrictions on bankrupts to either apply for child support or to become married. 
[9]
It is his argument that spousal rights and obligations are recognised as being purely personal, both in common law and in New Zealand statutes and to attempt to construe them as matters of “property” would fly in the face of reality. He argues that such rights are acquired in a particularly personal manner and, as such, they are neither assignable nor transferable. 
[10]
He argues that common law and statute law recognise the difference between “maintenance” and “property” and that what constitutes property to the payer represents maintenance to the payee. He says that although maintenance is not property, it may involve the use of property as a means of achieving the outcome of obtaining maintenance. He refers to a number of articles. He relies upon the notion that a bankrupt has a right to maintain himself and his family, and that maintenance is a personal rather than property right. 
[11]
There are a number of other matters and issues raised by Mr B in his submissions but, by and large, the above adequately summaries the hub of his case. 
Position of official assignee 
[12]
Although there has been no formal position taken by the Official Assignee, there has been correspondence between the respondent's counsel and counsel for the Official Assignee in Wellington. The response from the Assignee's counsel, Mr Lim of Oakley Moran, was a statement of his instinctive perception of matters rather than the result of detailed research. He makes it plain in his letter dated the 26 April 2007 that his comments are by way of general statement only, and I would not wish to do Mr Lim the disservice of indicating that his views are any more than that. 
[13]
He records that it is extremely rare for a bankrupt to apply for spousal maintenance and that, despite Oakley Moran having acted for the Official Assignee for a number of years, that firm has never come across such an application. 
[14]
He says that “by way of general statement, the Official Assignee does not interfere with rights … that are purely personal to the bankrupt”. He refers to para 42/13e of Spratt & McKenzie's Law of Insolvency (2nd ed), Wellington, Butterworths, 1972. I will refer to that excerpt later. The essence of that excerpt, however, is that rights that are purely personal to a bankrupt, as distinguished from a right of action for injury to his or her property or estate, do not pass to the official assignee. 
[15]
Mr Lim spoke briefly with the Official Assignee as to his position. He advises the initial view of the assignee is that proceedings under s 63 or s 64 of the Family Proceedings Act 1980 do not pass to the Official Assignee, and that Mr B should be able to continue with his application. The Official Assignee does not intend to interfere with the present proceedings. 
[16]
The Official Assignee indicated that if Mr B were to be successful, or partly successful in his application, then the assignee would consider that any payment received by him by way of lump sum maintenance would be “after acquired property” and must be paid to the assignee. Should Mr B be successful in obtaining an order for regular instalment payments, then the official assignee would reassess his circumstances to decide whether a contribution should then be made towards his creditors. 
[17]
I record that for the purposes of this decision I have no regard to what position the official assignee might or might not take should Mr B be successful in his substantive applications. That is an issue that does not impinge upon the preliminary issue that I am required to decide. 
Respondent's position 
[18]
The respondent challenges the view from the applicant and the Official Assignee and seeks a ruling on the issue. She argues that s 42 of the Insolvency Act 1967 makes it clear that the capacity to take proceedings in respect of any property “whatsoever” is vested in the official assignee but that it has long been accepted that rights of action which are purely personal to the bankrupt do not vest in the official assignee. 
[19]
Ms Ryan submits that the question for the Court is whether the right to bring proceedings for a spousal maintenance is purely personal to the bankrupt. She refers to case law by way of examples where the Court has determined that certain actions are personal or not. She submits that in each of the cases referred to by her, which I will refer to later in this decision, the cause of action relates to damage to the bankrupt's physical or emotional person, including their reputation. She compares this with the applicant's position where he is seeking spousal maintenance which relates to his right to property. She refers to s 2 of the Family Proceedings Act in which “maintenance” is defined as “the provision of money, property, and services … ”
[20]
She submitted the award sought by the applicant is a way to increase his financial means and not to compensate for damage to his body, reputation or other mental distress suffered and, accordingly, cannot therefore be an action that is purely personal to him. 
[21]
She then refers to other statutes that support her argument such as the limitation of a bankrupt's right to bring proceedings under the Property (Relationships) Act 1976, specifically s 20A that passes to the Official Assignee the bankrupt's right to bring proceedings. Reference is made to the Family Protection Act 1955 which, as with the Family Proceedings Act, contains no provision that discusses the status of the Official Assignee in proceedings under that Act. 
[22]
She cites the cases of Meller v Tetley-Jones 3/2/87, Barker J, HC Auckland A12417/84 and Quilter v Kidd 10/8/01, Master Faire, HC Hamilton M234/00 as support for her submission that the right of a bankrupt person to bring proceedings under the Family Protection Act passes to the Official Assignee. She submits that while the Property (Relationships) Act contains an express provision as to the rights of the Official Assignee, in respect of Family Proceedings Act 1980 the real test is whether or not the action is purely personal. 
[23]
She also refers to the Accident Compensation Act 1982, which prohibits accident compensation from passing to the Official Assignee. She submits, correctly, that this is because any award under that Act must relate to a bodily injury and therefore is a purely personal action. Indeed, I note that throughout the passage of a variety of statutes since the Accident Compensation Act 1972 (s 135) until s 123 of the current Injury Prevention, Rehabilitation, and Compensation Act 2001, compensation available under the accident compensation scheme is not assignable or alienable. This very much carries through the philosophy that derives from common law in which actions for damage to the person are sacrosanct. 
[24]
In respect of the indication by the Assignee that he will not intervene and that the applicant should be able to continue the action, Ms Ryan submits that there are no provisions in the Insolvency Act allowing the Assignee to either waive its right to apply or to consent to a bankrupt continuing. 
[25]
While she may be correct in terms of express statutory provision, there is case law that indicates that the Assignee can abandon the right to pursue a claim and formally assign the action to the bankrupt. Moynihan v Berkett 27/7/98, Paterson J, HC Tauranga CP3/94 provides a comprehensive summary on this issue. The High Court confirmed that it would usually be necessary for the Assignee to execute a deed of assignment of an action in favour of the bankrupt. Certain notice requirements are also indicated. 
Legal considerations 
Introduction 
[26]
As indicated by Counsel and also by the Assignee, there is no known case on the issue as to whether an undischarged bankrupt is able to initiate and pursue and application for spousal maintenance in his or her own right. Accordingly, I have had reference to a large number of cases and views of legal authors on the development of common law pertaining to the ability of bankrupt persons to take proceedings. 
Insolvency Act 1967 
[27]
The starting point is the Insolvency Act 1967 by virtue of it being the statute applying at the date of Mr B's adjudication. In particular, s 42 of the Act regulates the extent to which property of a bankrupt will pass to the Assignee. The aspects of s 42 relevant to this application are: 
“42. Property passing to Assignee and commencement of bankruptcy 
(1)
All the property and powers of the bankrupt specified in subsection (2) of this section are hereby vested upon adjudication or as soon thereafter as this section becomes applicable thereto in the Assignee of the bankrupt's property: 
Provided that, upon any other Assignee becoming the Assignee of the property of the bankrupt the said property and powers are hereby vested, thereupon or as soon thereafter as this section becomes applicable thereto, in that other Assignee, but without prejudice to any disposition made by any former Assignee. 
(2)
Subject to the provisions of subsection (3) of this section, and subject to the provisions of sections 47, 48, 49, 50, and 59 of this Act, the property and powers of the bankrupt to vest in the Assignee and be divisible amongst his creditors shall comprise the following: 
(a)
All property whatsoever and wheresoever situated belonging to or vested in the bankrupt at the commencement of the bankruptcy, or acquired by or devolving upon him before his discharge: 
(b)
The capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of any property whatsoever and wheresoever situated as might have been exercised by the bankrupt for his own benefit at the commencement of the bankruptcy or before his discharge. 
 
(5)
Nothing in the Land Transfer Act 1952 shall restrict the operation of this section, and nothing in this section shall affect the operation of any other enactment or rule of law which prevents any property from passing to the Assignee. ”
[28]
In turn, what amounts to being “property” is defined in s 2 as: 
Property means land, money, goods, things in action, goodwill, and every valuable thing, whether real or personal, and whether situated in New Zealand or elsewhere; and includes obligations, easements, and every description of estate, interest, and profit, present or future, vested or contingent, arising out of or incident to property: ”
[29]
It must be noted that “property” will include tangible items, such as “money” or “goods” and also intangible property such as “things in action”, meaning that a right of action to seek an order vesting property or suchlike will in itself be “property”. The definition is clear and indicates items, whether “present or future, vested or contingent, arising out of or incident to property” are included. 
[30]
Returning to s 42, it can be noted that any thing amounting to “property” whatsoever and wheresoever situated, which belongs to, or vests in a bankrupt person at the time of commencement of bankruptcy, or acquired by the bankrupt before their discharge, will pass to the assignee. The capacity to exercise and to take proceedings in respect of any item meeting the definition of “property” which might have been exercised by the bankrupt for his or her own benefit from the time of commencement of bankruptcy until discharge will also pass to the assignee. 
[31]
There are some exceptions specifically included in the Act but, for the purposes of the present application, the most significant exception is found in s 42(5) of the Act, which expressly preserves any other enactment or rule of law which prevents any property from passing to the assignee. This proviso is significant in that it preserves long-established rules of law protecting certain rights of bankrupt persons. 
[32]
Accordingly, while s 42(2) would quite plainly pass the current application to the assignee, reference must be made as to whether the common law changes that position. 
Common law — introduction 
[33]
There is a wealth of case law dealing with the restrictions upon the statutory provision that would pass all items of property to the assignee. For the purposes of Mr B's application I need to consider the law in respect of the two areas. The first relates to whether an application for spousal maintenance is a personal action, while the second pertains to whether an application for a spousal maintenance order would be “after acquired property”
Personal actions 
[34]
It has long been held that the law will not permit the Official Assignee to bring or continue an action which could have been, or has been brought, by a bankrupt for the purpose of obtaining damages for injury to the bankrupt's person or reputation. 
[35]
Comprehensive summaries on this rule of law are to be found in the cases of Dobie v McCullough 10/7/95, Master Gambrill, HC Rotorua CP6/95 and Official Assignee v Dowling [1964] NZLR 578 (SC)Has Cases Citing which are not known to be negative[Green] . Together, those decisions provide a thorough overview of the common law that the bankruptcy vesting provisions do not pass to an Assignee causes of action involving damage to the person, as distinct from damage to property or property rights of the bankrupt. 
[36]
On p 7 of her decision, Master Gambrill quoted from para 42/13e of Spratt & McKenzie's Law of Insolvency which confirms that for s 42 to pass personal actions to the assignee, would require express statutory reference by virtue of the longstanding rule of law preserving such actions to the bankrupt. 
[37]
The excerpt from Spratt & McKenzie provides a number of examples of actions that are regarded as being personal to the bankrupt. It cites things such as a right of action for slander; contracts that are purely personal to the bankrupt and unaccompanied by injury to the estate; damages for injury arising from negligence to a person's credit and reputation; and breach of promise to marriage. Dowling considered that injury to the reputation and credit of a bankrupt arising from tortious conduct by the defendant which forces the plaintiff into bankruptcy, gives a right of action personal to the bankrupt which does not pass to the assignee. However, where the substantial cause of action is direct personal loss to his estate, even if there is some injury to character and credit, the right of action will pass. 
[38]
Master Gambrill made reference to leading New Zealand cases such as Leach v Official Assignee [1975] 1 NZLR 83 (SC)Has Cases Citing which are not known to be negative[Green]  and Dowling, both of which applied the principle from Beckham v Drake (1849) 2 HL Cas 579; (1849) 9 ER 1213Has Cases Citing which are not known to be negative[Green] , in which Erle J stated: 
“The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or character, and without immediate reference to his rights of property. Thus it has been laid down that the assignees cannot sue for breach of promise of marriage, for criminal conversation, seduction, defamation, battery, injury to the person by negligence, as by not carrying safely, not curing, not saving from imprisonment by process of law. ”
[39]
It is a consistent theme of the case law that for a right of action to remain with the bankrupt, there must be a strong base in tort, or a breach of certain personal contracts or a wrong to the person or their character, rather than to their property. 
[40]
In summary, the line of authority confirms the approach that the Assignee should not benefit from a situation where the bankrupt person seeks award or compensation for physical sufferings, emotional or mental anguish, or for outraged feelings from damage to themselves, bodily, or to their credit or to their reputation. In such situations, the law is very clear that such property or rights of action do not pass to the official assignee. The law as to the vesting of rights of action was well summarised in a passage from Hunter M and D Graham, The Law and Practice in Bankruptcy, (19th ed), London, Stevens, 1979, at pp 292-293, cited by Master Gambrill. It states: 
“1.
A right of action in respect of a tort or of a breach of contract, resulting in injuries wholly to the person or feelings of the bankrupt, does not pass to the trustee. 
2.
A right of action in respect of a tort or of a breach of contract resulting in injuries wholly to the estate of the bankrupt passes to the trustee. 
3.
A right of action, whether in respect of a tort or of a breach of contract, resulting in substantial injuries both to the estate and also to the person or feelings of a bankrupt, will be split; so far as it relates to the estate, it will pass to the trustee, and so far as it relates to the person or feelings of the bankrupt it will remain in him. If, however, the injury to the person, feelings or reputation of the bankrupt is merely consequential to the damage to his property (even though the claim is founded on conspiracy to defraud) the right of action will wholly pass to the trustee, and the bankrupt cannot continue to sue for his part of it. The trustee and the bankrupt can bring separate actions to recover their appropriate damages, or they can join as plaintiffs in one action, in which case the damages will be assessed under the two separate heads. 
This rule must be read subject to the caution that where the injury under either head results in damages, which if standing alone would be too remote to be recoverable, the party whose action is founded on that injury will have no enforceable claim. If the cause of action be such that the jury would be entitled to award exemplary (formerly termed ‘punitive’ or ‘vindictive’) damages, prima facie it will remain in the bankrupt. It is also to be observed that where a contract contains several conditions, there may be separate causes of action. 
4.
The right of action for a breach of contract, even if it relates to the personal labour of the bankrupt, will vest in the trustee, if a right of action had already vested in the bankrupt before the bankruptcy; … . ”
[41]
Accordingly, in terms of the application by Mr B I will need to determine whether the application by him as an undischarged bankrupt for spousal maintenance is a right of action to his person or his reputation, as opposed to his estate. 
After-acquired property 
[42]
The second area of consideration is the issue of what is referred to as “after acquired property”. “After acquired property” is not defined in the Act but can be seen as being property devolved upon the bankrupt after the commencement of the bankruptcy but before the discharge of it (The Laws of New Zealand, (Insolvency), Wellington, Butterworths, 1972-, at para 252). 
[43]
The leading statement in New Zealand on this issue is found in Gough v Fraser [1977] 1 NZLR 279 (CA)Has Cases Citing which are not known to be negative[Green]  in which the Court of Appeal held that a bankrupt person is competent to issue and pursue proceedings in respect of “after acquired property” unless and until the Assignee intervenes. 
[44]
In Gough v Fraser, the Court of Appeal traced the history of development of the law pertaining to “after acquired property”. The Court of Appeal endorsed the approach of Cooper J in Hutchison v Benge (1908) 27 NZLR 1060 (SC)Has Cases Citing which are not known to be negative[Green]  in which the Supreme Court, as it then was, endorsed the principle in Herbert v Sayer (1844) 5 QB 965 that recognised that, insofar as “after acquired property” is concerned, the insolvency legislation should be interpreted as giving to the Assignee the beneficial interests in such property but leaving the bankrupt in a position to sue in respect of “after acquired property”, unless the Assignee elected to “disaffirm his action”
[45]
In Gough v Fraser the Court of Appeal expressed the view that under the Bankruptcy Act 1908 and the Insolvency Act 1967, the law still remains as stated in Hutchison v Benge, namely “that a bankrupt is competent to sue in respect of ‘after acquired property’ unless and until the Official Assignee intervenes”
[46]
As such, in the case before me the issue arises as to whether the application for spousal maintenance is, in itself, “after acquired property” or whether, being a “thing in action” it was property existing at the commencement of the bankruptcy. 
Right to livelihood 
[47]
I need to comment upon a matter central to the applicant's case, namely his submission that a bankrupt has a right to maintain himself or herself and their family and that, as such, he is able to make the present application. 
[48]
Mr B made reference to a Canadian article authored by Cristin Schmidz and a summary of a case of the Court of Queens Bench of Alberta, Canada being Re Coates [2006] ABQB 201; [2006] AWLD 1594. The article and the decision are not of assistance in guiding me on the issues before me. The Schmidz article deals with a bankrupt's ability to abandon their matrimonial debts after discharge of their bankruptcy, a quite different point from that before me. Likewise, from the brief case summary of Coates it appears that an Association of Insolvency Professionals applied to the Court for guidance as to how a nation-wide tax refund should be treated in the case of bankrupt persons. It was not a case such as the one before me where an individual bankrupt seeks to commence an action. The summary does confirm the rule that bankrupt persons have a right to retain what is reasonably required for their maintenance. That aspect is not in dispute before me. 
[49]
I do not dispute Mr B's submission that the law has long held that the Official Assignee cannot prevent a bankrupt from spending the proceeds of an action for personal damages on maintenance of himself or his family. However, that protection arises once the bankrupt has proceeds in his or her possession, as opposed to the ability to take an action. The law is clear that if the action is not personal then the bankrupt is prohibited from commencing it. 
[50]
As commented in Spratt & McKenzie and confirmed in Leach, the rule regarding the right of maintenance derives from Re Wilson, ex p Vine (1878) 8 Ch D 364Has Cases Citing which are not known to be negative[Green] , at p 366. The principle emanating from Vine is that where a bankrupt recovers damages for a personal tort, the assignee is not entitled to intercept them or prevent the bankrupt from expending them in the maintenance of themselves or their families. 
[51]
The issue as to a bankrupt's ability to retain what is needed for his or her support was discussed by the Court of Appeal in Re Bertrand [1980] 2 NZLR 72 (CA)Has Cases Citing which are not known to be negative[Green] . The Court referred to Re Roberts [1900] 1 QB 122Has Cases Citing which are not known to be negative[Green]  where Lindley MR confirmed that all personal earnings of the bankrupt between the commencement of his bankruptcy and his discharge would belong to the trustee. However, Lindley MR confirmed that the provisions of the Bankruptcy Act 1883 must not be taken so as to deprive a bankrupt of “those fruits of his personal exertions which are necessary to enable him to live”
[52]
In Bertrand the Court of Appeal confirmed the position in New Zealand as being: 
“In New Zealand, however, subs (5) of s 42 of the Insolvency Act 1967 expressly recognises the principle expressed in Roberts case, as restated in Burney, that a bankrupt is entitled to so much of his earnings after adjudication as is necessary to maintain himself. All after-acquired property vests in the Assignee, as s 42 provides, but earnings, to the extent that they are needed for the bankrupt's living, while notionally vesting in the Official Assignee are subject to the bankrupt's use. ”
[P 76]
[53]
By my reading, the common law preserves the ability of a bankrupt to challenge the extent to which any earnings by them or property acquired by them would remain with the trustee or Assignee. However, this rule does not, in itself create the ability for a bankrupt to take an action for spousal maintenance unless that action is found to be a “personal” action. Rather, the rule was formulated to protect the ability of a bankrupt to earn a living or retain so much of the proceeds of a successful personal action as required to maintain self and family. 
[54]
The rule of law does not support the applicant's contention that because he has a right to earn a living that he can, ipso facto, commence any action that may create a maintenance award. The kernel is in the nature of the action. 
[55]
I turn now to discuss this substantial case law in terms of the current application. 
Analysis 
Is an application for spousal maintenance a “personal action”
[56]
The claim by Mr B derives from the personal relationship he had with the respondent by virtue of them being spouses to a marriage. The marriage was entered prior to Mr B's bankruptcy and was extant as at the date of hearing by virtue of no order of dissolution having then been made. 
[57]
In his submissions, Mr B emphasises his view that the rights of the Assignee do not extend to personal actions between spouses. However, the law is treating the word “personal” with a narrower focus than merely referring to a personal relationship. The abundant case law, as referred to by me, emphasises that the focus must be on ascertaining whether the particular action involves damage to the body of person, or their reputation, as distinct to damage to property or property rights of the bankrupt. 
[58]
An application for spousal maintenance is inherently a property right accruing to persons who have the right to apply under the governing legislation, in this case the Family Proceedings Act 1980. The ability of Mr B to make application derives from s 67 of that Act, which provides that “Either party to a marriage or civil union may make an application for a maintenance order against the other party to [that relationship] on the ground that the respondent is liable to maintain the applicant”. The foundation of an application relies upon the relationship and a liability to maintain. They are pecuniary or financial interests arising by virtue of the particular relationship, namely either a marriage or a civil union. Accordingly, the cause of action derives from the relationship together with an assessment as to whether the statutory liability to maintain is or is not being met. 
[59]
An application for spousal maintenance is not, in my view, anything akin to the types of personal actions that have been referred to in the substantial case law I have referred to. There is nothing in the nature of a “personal tort” or similar. There is no damage to the person of Mr B in a physical sense, and there is no damage to his reputation or damage to his credit. It is arguable that the liability of a spouse to maintain the other might be akin to a personal contract but, again, the case law is clear that there must be something in the nature of a wrongful breach of such contract, rather than the mere existence of the contract. In any event I view the liability to maintain as being a statutory liability rather than a personal contract and that the liability in s 67 is not founded upon wrongs. 
[60]
Despite my perusal of a substantial amount of case law, and a variety of cases, I can see no case that has ever considered as a “personal action” anything other than the types of harm or damage to the person or reputation as described. I have found no case where anything even remotely similar to spousal maintenance has been seen to be a personal action or tort. I believe that this is for the reason that an application for maintenance arises from a different foundation than the narrow form of action considered to be a personal tort or similar. 
[61]
Accordingly, in respect of the first consideration the application by Mr B for an order of spousal maintenance is not a personal action that vests in Mr B personally. 
Is the application for spousal maintenance “after-acquired property”
[62]
I must determine what is the “property” in question in this application and when it was acquired. 
[63]
The “property” is the applicant's right to make an application deriving from the Family Proceedings Act 1980. There is no question that a right to apply exists, subject of course to any restriction imposed by the bankruptcy. That right is, within s 2 Insolvency Act 1967, a “thing in action”. In the case before met it is the right to make the application that is the “property”, rather than the product of a successful application, as of course the latter cannot subsist without the former. 
[64]
When was that “thing in action” acquired? The particular right to take an application for maintenance during marriage arises “during a marriage or civil union”. The right to apply exists at any point from the commencement of the marriage until its determination by dissolution. Such application may be made whether the parties are separated or still living together. As noted in Webb P H R, Family Law Service, vol 1 (maintenance), Wellington, LexisNexis, 2004-, at para 5.6, most cases where maintenance is sought during the subsistence of a marriage or civil union arise after the parties have separated. The authors note that it is rare for maintenance to be sought while the parties are still living together. 
[65]
Having regard to the right of action, it is difficult to view it as something that merely accrued after the applicant's bankruptcy in 2005. The parties married in 1993 and while it would be unreasonable to have expected the applicant to apply, as he is entitled, for maintenance prior to separation in 1999, he could have applied upon separation. He is quite emphatic in his evidence that he sees himself as, to put it in the vernacular, having “carried” the respondent both before and after separation. Indeed his affidavit depositions are quite brutal in expressing that viewpoint. The triggering event for the application seems to have been his resentment at her having obtained half the equity in the family home upon his bankruptcy. 
[66]
In determining when the property was acquired, the focus of the inquiry is not in my view in ascertaining the motivation for his application so much as the point at which the right arose. It cannot be disputed that the right to make application for maintenance existed well before his bankruptcy. The fact that the respondent may not have been “worth powder and shot” prior to the bankruptcy is not the defining aspect. Indeed it would be quite artificial to distort the focus in such a manner. 

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