SPOUSAL MAINTENANCE

Have you relied on your partner’s income throughout the relationship and now found yourself in a financially strained position? Are you required to continue looking after your children full time while your ex-partner continues to work and earn a reasonable income? If your answer is yes to the above, you may be entitled to spousal maintenance.

 

Spousal maintenance is available for parties after the breakdown of their marriage or de facto relationship. Spousal maintenance is an order intended to provide financial support to one spouse from the other spouse’s income following the breakdown of a marriage. Subject to satisfying certain criteria, you may have a right to make an application for periodic or lump sum spousal maintenance under section 72 of the . Spousal maintenance applications can also be made under section 90SE of the Family Law Act 1975 for parties to a de facto relationship.

 

What do I need to prove to get spousal maintenance?

The test for spousal maintenance is set out under section 72 of the Family Law Act 1975, and the Court will consider the factors outlined under section 75(2) when considering an application for a spousal maintenance order. Section 72(1) of the provides:

"(1)  A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a)  by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b)  by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c)  for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).”

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The test considers the party seeking maintenance’s income and expenses, their capacity to earn income and their financial resources, and then the capacity of the other party to pay the maintenance sought. In other words, the test requires you to prove, on the balance of probabilities:

 

1. That you are unable to adequately support yourself; and

2. That the other party has capacity to pay you maintenance.

 

What are the different types of spousal maintenance applications?

 

There are three types of spousal maintenance applications that can be made under the Family Law Act 1975:

• Urgent (Section 77)

• Interim spousal maintenance; or

• Final spousal maintenance.

 

Spousal maintenance can be paid in a non-periodic lump sum such as $20,000, or in periodic amounts, such as $300 per week until further Order of the Court, or for 3 years until a party secures employment.

 

If you think your spousal maintenance application is urgent, it is important to obtain legal advice as to whether your matter meets the threshold for urgency.

 

An for spousal maintenance is made pursuant to section 74 (for parties to a marriage) and section 90SE (for parties to a de facto relationship) of the (Cth). Interim spousal maintenance may be ordered in circumstances where a party requires maintenance immediately after the breakdown of the relationship or marriage. It is only a temporary order that will remain enforced for a period defined by the Court, or until further Court Order.

 

An order for interim spousal maintenance cannot be made until both parties, being the party wanting to receive the maintenance (the Applicant) and the party who is proposed to pay the maintenance (the Respondent), has filed Affidavit evidence and a Financial Statement so the Court is aware of each party’s financial position and relevant information relating to the proposed payer’s capacity to pay spousal maintenance. After reviewing the evidence and determining that one party has a need and the party has a capacity to pay to meet that party’s need, the Order for interim spousal maintenance can be made by the Court.

 

An order for can be made pursuant to section 77 (for parties to a marriage) and section 90SG (for parties to a de facto relationship) of the (Cth).

 

Urgent spousal maintenance can be by way of a lump sum payment or by way of payments made periodically over time. Urgent spousal maintenance applications are dealt with in a summary way, meaning the parties do not necessarily have to provide for the Court’s review evidence of their financial circumstances in support of their claim for spousal maintenance. This is different from an interim spousal maintenance application which requires the Court to have all evidence before it. As such, an Order for urgent spousal maintenance is usually made in circumstances that could be considered an emergency and when there is a clear need but no time for parties to provide evidence.

 

The case of (1978) FLC 90-505 stated that the purpose of section 77 of the , and its mirror provision for de facto parties under section 90SG, is to provide a party with Orders to relieve their pressing and present need. The Court shall determine whether to make an Order for urgent spousal maintenance on a pragmatic or realistic basis, rather than taking their time to hear the application upon merit and otherwise putting the Applicant in a further financially draining position.

 

Filing for Spousal Maintenance:

To make a spousal maintenance application you will need to file an Initiating Application (or Application in a Case if there are already active Court proceedings), an Affidavit to support the application, and a Financial Statement as to their current financial circumstances, including income and expenditure. You will also need to complete Part N of the Financial Statement which outlines your weekly expenses on items such as groceries, electricity and maintenance for the home, etc.

 

Once a interim or final spousal maintenance order is made, it can be varied pursuant to section 83 (for married persons) or section 90SI (for de facto partners).

 

What is “Lump Sum Spousal Maintenance”?

A lump sum payment is a one off payment that can be ordered by the Court pursuant to section 77(A) (for parties to a marriage) and Section 90SH (for parties to a de facto relationship) of the (Cth). A lump sum payment may be ordered in circumstances where the party who is to provide the maintenance does not have the income to make payments to the other party periodically and on an ongoing basis. The Court could determine that the “paying party” has deliberately put themselves in such a situation in a hope of avoiding spousal maintenance. In such circumstances, the Court will look to the nature and value of the assets the payer party has available to him or her, for the purpose of determining the availability of funds to provide a lump sum payment.

 

The party who is in receipt of the lump sum spousal maintenance has a responsibility of ensuring that the money is applied to their reasonable living expenses which they have demonstrated to the Court they cannot pay themselves.

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If you think your ex-spouse or ex-partner should be providing you with financial support following the breakdown of your relationship, it is important that you do not delay seeking legal advice. At KF Lawyers, we have experienced family lawyers who can assist you in seeking spousal maintenance and financial relief from your ex-partner. If you wish to discuss your options, please contact KF Lawyers to arrange a free initial consultation.