What is spousal maintenance?
Following the breakdown of a relationship, under the Family Law Act, a party to a marriage or a de facto relationship is liable to financially maintain the other party if the other party cannot adequately support themselves.
The threshold is whether the payer can reasonably pay spousal maintenance and whether the other party cannot support themselves adequately.
When making an order for spousal maintenance, the court considers the following matters for each of the parties:
- Their age and health
- The care of a child/ren under the age of 18 (or adult children with a disability)
- Their ability to obtain appropriate gainful employment
- Whether the relationship affected a party’s ability to earn income
- Their income, property and financial resources
- Eligibility for government benefits.
- A reasonable standard of living
- Whether the payment will increase the ability to undertake further education or establish a business to secure an adequate income
- Any child support payable in respect of a child of the relationship
- Any fact or circumstances the court requires to be taken into account.
Is there a time limit to seek spousal maintenance?
As with property settlements, after the breakdown of a marriage, a party has 12 months after the date the divorce is granted to seek spousal maintenance. If the parties were in a de facto relationship, the parties have two years after the breakdown of the relationship to seek spousal maintenance.
If a party seeks to file in court out of time, then the court will need to grant leave to file.
How do I apply for spousal maintenance?
As with property settlements, parties to a spousal maintenance application are required to follow pre-action procedures, including the exchange of full and frank financial disclosure and attending mediation if possible.
If you and your former partner reach an agreement on spousal maintenance and wish to make it legally binding, Fourtree Lawyers can prepare Consent Orders to be filed in the Family Court of Australia or a Financial Agreement.
If you and your former partner cannot agree on spousal maintenance, Fourtree Lawyers can assist you with commencing court proceedings in either the Federal Circuit Court of Australia or the Family Court of Australia.
Types of Spousal Maintenance
The Family Law Act provides that the court may make an order for spousal maintenance if the party is in immediate need of financial assistance. The court may, pending further order if sought, order the payment of a periodic sum or other sums as the court considers reasonable. In other words, the court will make an order for urgent spousal maintenance if there is an emergency.
The court can make an order for urgent spousal maintenance without all evidence being available to the court. For this reason, the courts will generally only make an order for urgent spousal maintenance applications for a short period of time.
Caution must be used when making an application for urgent spousal maintenance and should not be confused with an order for an interim spousal maintenance application.
Parties may make an application for interim spousal maintenance pending a final order being made.
A court can only make an interim order when the parties have each filed an Initiating Application/Response to Initiating Application (or an Application in a Case/Response if proceedings are on foot), an Affidavit and a Financial Statement. The parties will need to complete Part N of the Financial Statement if spousal maintenance orders are sought.
Any interim payments made to one party will be taken into account by the court when final orders are made.
Final orders for spousal maintenance are often made simultaneously as final orders for a property settlement. However, when making the order, the Court should consider the property orders first. The effect of any property order made can significantly affect any spousal maintenance order that should be made.
Where the court makes an order for spousal maintenance, the court shall specify the order to which this section applies and specify the value of the spousal maintenance order.
If there is a significant change of circumstances, the parties can apply to the Court to vary final spousal orders after the Court has made them.
What spousal maintenance orders can the court make?
When making spousal maintenance orders, the court can make an order for a lump sum payment, whether in one amount or ongoing periodic payments, or the transfer of settlement of property.
When making spousal maintenance orders, the court generally prefers to order a one-off lump-sum payment or the transfer of settlement of property as the court has a duty to make orders that will finally determine the financial relationships between the parties to avoid further proceedings between them.
When do spousal maintenance orders stop?
A spousal maintenance order will cease if the party receiving the spousal maintenance payment marries unless, in special circumstances, a court orders otherwise. If you are in receipt of spousal maintenance payments and you re-marry, you have an obligation to inform the payer of spousal maintenance upon the re-marriage taking place. You may be liable to repay any payments received after you have remarried.
Spousal maintenance orders will also cease upon the death of a party or the orders themselves may specify an end date to the obligation to make spousal maintenance payments.
We are here to help
Our Family Law Solicitors specialise in spousal maintenance matters and represent clients throughout the Central Coast, Newcastle & Hunter Regions. We have the experience and understanding to guide you through the process from beginning to end and get you the best possible outcome.
At Fourtree Lawyers, we aim to help you resolve spousal maintenance matters quickly, cost-effectively and preferably out of court. Contact one of our Family Law Specialists on 1300 529 444 or fill in a contact form to arrange a free conference with a solicitor today.
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