The Family Court has the ability to order that one party to a marriage (or a de facto relationship) pay spousal maintenance to the other if that party is not able to adequately meet their own reasonable needs.
What is spousal maintenance?
Spousal maintenance is the provision of financial support from one party to a relationship with the other (post-separation). Orders for payment of spousal maintenance may be made with the agreement of parties (i.e. by consent), or as determined by the Court. Generally, the provision of maintenance is aimed at enabling one party to meet their reasonable needs, as opposed to meeting discretionary expenditure, or for the provision of luxury items, such as holidays.
The “reasonable need” is generally considered as relating to expenditures such as housing, utility expenses, food, clothing, medical needs, etc.
Why does the Court make Orders for spousal maintenance?
Spousal maintenance may be ordered to be paid from one party to another if the ‘paying party’ is considered to be liable to maintain the other (and if they are reasonably able to do so).
The ‘receiving party’ must be unable to support themselves, as a result of:
Having the care and control of a child of the relationship under 18 years of age;
Their age or physical or mental incapacity to obtain employment; or
Any other adequate reason.
There are a number of factors that the Court can take into account when considering an application for spousal maintenance, including:
The age and state of health of the parties;
The length of their relationship;
The income of each of the parties, and their physical and mental capacity to obtain gainful employment, as well as their financial circumstances generally and financial resources available to them;
Whether one party has the care of children from the relationship;
A standard of living that is reasonable in the circumstances.
When can the Court order spousal maintenance?
The Court has the power to order that spousal maintenance be paid during a relationship or following separation. In the case of Eliades & Eliades (1981), the Court made Orders to the Wife in an intact marriage. There are time limits that apply as to when a party may seek that orders be made for spousal maintenance, and accordingly, you should obtain advice tailored to your circumstances in relation to a property settlement and/or maintenance as soon as possible after separation.
In terms of the frequency of the payment, spousal maintenance may be ordered to be paid either as a periodic payment (i.e. per week, fortnight, or month), or as a lump sum.
Where can an order for spousal maintenance be made?
Orders can be made for payment of spousal maintenance within Australia, and also in circumstances where a party is living overseas.
A maintenance order made in another jurisdiction may also be registered and enforced in Australia. You should receive advice tailored to your circumstances if seeking to register a maintenance order made overseas. The jurisdictional requirements are complex and vary from one jurisdiction to another, and whether an overseas order can be enforced in Australia is dependent on whether Australia has a reciprocal arrangement with the country where the maintenance Order was originally made.
How does the Court have the power to make an order for payment of spousal maintenance?
The Court has the power to make orders for spousal maintenance pursuant to Section 74 of the Family Law Act 1975, to make such order as it considers ‘proper’.
Adult child maintenance
In certain circumstances, the Family Court can also make orders for a parent (or parents) to pay adult child maintenance to a child aged over 17 years (or to the other parent for the benefit of the adult child). The Court will consider any medical and/or educational issues that may be preventing the adult child from being able to earn an income to support themself. The capacity of the parent being asked to pay the adult child maintenance is also a relevant factor that the Court must consider before imposing any order on a parent.
If you would like legal advice about your specific circumstances, including property settlement or spousal maintenance matters, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.
Author: Margot McCabe