Spousal Maintenance – What is it and who can apply for it?

The breakdown of a relationship is a daunting process for many; there are several unknowns, including how life will be funded without a dual income pending the completion of a property settlement.  More often than not, there is an income discrepancy between the parties of the relationship, and this can cause anxiety for the party with a lower income. They may be concerned about how they will afford basic living expenses and accommodation.  

What is spousal maintenance?

The Family Law Act places an obligation on a party to a marriage or de facto relationship to maintain the other party, to the extent that they are reasonably able to do so, in the event that the other party is unable to support themselves adequately due to:

1. The care of a child under the age of 18 years;

2. The party’s age, physical or mental incapacity to gain meaningful employment;

3. Or any other matter considered relevant by the Court.

This obligation is known as spousal maintenance.

In more general terms, spousal maintenance becomes applicable when one party has a shortfall between their income and outgoings, and the other party has the capacity to assist in meeting those outgoings once they have paid for their own reasonable expenses.

There are many forms of spousal maintenance, including:

• Urgent spousal maintenance – where the Court can make an order pending consideration of the need for ongoing maintenance;

• Periodic spousal maintenance – where the Court makes an order, either interim or final, for payments to be made for a period of time (i.e. weekly);

• Lump sum spousal maintenance; and

• An order for the sole use of property (i.e. the former matrimonial home or a vehicle).

Spousal maintenance orders tend to be made on an interim basis, or for a set period on a final basis, to enable the applying party’s circumstances to change such that they can financially support themselves (i.e. return to work once young children go to school, complete studies that will allow them to obtain meaningful employment, or the completion of a property settlement which accounts for the parties’ future needs, including incomes disparity and age).

Who can apply for spousal maintenance?

Spousal maintenance proceedings can be commenced by either party to a marriage or a de facto relationship.  The proceedings can be commenced as follows:

• For married couples: during the relationship, at any point following separation and within 12 months of a divorce order being granted; and

• For de facto couples: within 2 years of separation.

Spousal maintenance proceedings are separate to property settlement proceedings.  While they often run concurrently, there is no need to have a property settlement application before the Court in order to commence spousal maintenance proceedings.

What evidence is required?

When applying for spousal maintenance, the applicant will need to give evidence about the following matters:

• The nature of their relationship with the other party – i.e. was there a marriage or de facto relationship?  

• If the proceedings are to be commenced out of time (see time limits above), an explanation as to why that is the case and a request for leave to apply out of time must be made.

• The applicant’s income and reasonable living expenses.

• Details of why the applicant says they are unable to adequately meet their expenses – i.e. is there something that precludes them from obtaining meaningful employment, or employment with greater renumeration?  Evidence should also be given about the arrangements that were in place during the relationship – i.e. if the Applicant was the primary carer of small children during the relationship, this is a relevant factor for the Court to consider.

If applicable, independent evidence should also be provided to the Court to assist the determination of a spousal maintenance application. Independent evidence would be applicable if, for example, the applicant said they were unable to work due to a disability or illness.

No two family law matters are the same, and while there can be similarities between cases each case must be assessed based on its own facts.  In the event you are considering filing a spousal maintenance application you should first obtain specialist family law advice in relation to the evidence that you can give in support of your application, and the prospects of your application being successful.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Spousal Maintenance and Maintenance Orders. What, Why, When, Where, How?

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:

1. Having the care and control of a child of the relationship under 18 years of age;

2. Their age or physical or mental incapacity to obtain employment; or

3. 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:

1. The age and state of health of the parties;

2. The length of their relationship;

3. 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;

4. Whether one party has the care of children from the relationship;

5. 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

I need help meeting my expenses – what can I do?

It is not unusual in relationships for one person to earn more than the other, or for one person to be financially dependent on the other because they are home caring for the family instead of being in paid employment. While this dynamic can work well while a couple remains together, it can cause serious problems during a separation or when someone is thinking about separating. 

When one person holds all the purse strings, the thought of what is going to happen financially in the short term can be overwhelming and frightening for the other person. Financial inequality can also prevent people leaving relationships as it can be cripplingly difficult to make the decision to leave when you have nowhere to go, or don’t have access to enough money to pay for housing, groceries or petrol on your own.

If you find yourself in a situation where you are considering leaving a relationship, or have already left, and cannot meet your own expenses by yourself, you may be able to ask the Court to make an Order that compels your former partner to chip in funds to assist you. These kinds of Orders are called ‘spouse maintenance’ or ‘de facto spouse maintenance’ Orders and can be made regardless of whether you were married or not, and can be made on an urgent, interim or final basis.

The Court must answer two questions when determining whether or not to make a maintenance Order. Firstly, the Court must decide whether the person asking for maintenance has a need for maintenance because they cannot meet some or all of their own reasonable expenses, and secondly, whether the other person has the capacity to meet that need. The Court will consider many different factors when answering these questions, including assessing each person’s income capacity and their actual income (which can be quite different), their property and financial resources, their age and health, care of children, and what is a suitable standard of living in all the circumstances. If successful, the maintenance can be paid in different ways, including a weekly or monthly amount, or a lump sum amount. The exact amount paid depends on the specific circumstances of each case.

This is a complex area of family law and it is important that you obtain specialist family law advice if you find yourself in a situation where you think you need help meeting your own expenses or are worried about your ability to meet expenses after you separate. There is also a criteria to be met (about the nature of your relationship) and time limits to be considered.

Please call our team on (02) 6225 7040 or email info@rmfamilylaw.com.au for an obligation free discussion and fee estimate.