Recently Separated? Are You Entitled To Spousal Maintenance?

Monday, April 24, 2017

If you have recently separated from your partner, you may be entitled to spousal maintenance.

What Is Spousal Maintenance?

Spousal maintenance is the right for one party to a relationship to maintain the other party upon the parties’ separation.  The court has power to make an Order in relation to spousal maintenance by virtue of section 74 of the Family Law Act 1975 (“the Act“) in relation to married couples and section 90SE of the Act in relation to de facto couples.

What Are The Types of Spousal Maintenance Orders?

There are three types of spousal maintenance orders:

  1. urgent maintenance,
  2. interim order for maintenance, and
  3. final order for maintenance.
Who Can Apply For Spousal Maintenance?

In the case of Bevan[1] (the definitive case on this area of the law), the court determined the process in determining maintenance orders.  Firstly, the courts will decide whether a party is to receive spousal maintenance based on two interdependent tests.  The payee must have a need for spousal maintenance and the payer must have the capacity to provide financial assistance to the payee.  If one of these conditions fails to be proved, then the court will not entertain an Application in relation to spousal maintenance.

The payee must be in need of spousal maintenance to ‘adequately’ support themselves[2].   A party must satisfy the court that they have a need based on their inability to adequately support themselves for one of the following reasons as outlined within section 72(1) and section 90SF(2) of the Act.  The term ‘adequately’ is determined by what is reasonable in the circumstances of the particular case[3].  This means, the party seeking spousal maintenance must be provided with more than the bare necessities[4].  This does not mean that the paying party is to provide the other party with the same standard of living which the parties had prior to separation[5].

A payer must have the financial capacity to be ‘reasonably able’ to provide financial support to the other spouse.  The court will determine whether a person is ‘reasonably able’ by applying a forensic accounting of the income and expenses of that person in determining whether the person has the capacity to pay.  This means, the payer must have the ability to pay monies to the payee to assist with the adequate support of the other party.

Interestingly, the court considers any income-tested pension, allowance or entitlements as to the income for the spouse to pay spousal maintenance.  However, there is no consideration by the courts given to any income-tested pension, allowance or entitlements in relation to the financial position of the spouse who is required to establish that they are unable to ‘adequately’ support oneself[6].

Essentially, the courts recognise that it is a liability for the more financially able spouse not the government to maintain the spouse who is unable to support themselves financially post-separation.  There are additional considerations that the court must consider such as the parties:

  • age and state of health,
  • physical and mental capacity to gain employment,
  • whether a party has the care or control of a child/ren who have not attained the age of 18 years,
  • the commitments of a child/ren which impact upon their ability to support oneself,
  • responsibilities to support other persons,
  • the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration,
  • the need to protect a party who wishes to continue that party’s role as a parent, and
  • various other considerations.

In light of these considerations, the court must acknowledge that the standard of living prior to separation is not automatically granted to a party post-separation.  More importantly, the court has discretion to make an order by taking into consideration the individual circumstances of each of the parties to determine what is reasonable in the particular circumstances of each case.

Time Limitation

For married couples, there is a twelve month time limitation for those who intend to make an application to court seeking spousal maintenance from their ex-spouse.  For de facto couples there is a two year time limitation.  A failure to do so may mean that any proceedings relating to maintenance (or property) may become statute barred and you may lose your rights to your claim for spousal maintenance (or property settlement) being determined by the Family Court or Federal Circuit Court.

It is important that you speak with a family lawyer in order to determine whether you are entitled to claim spousal maintenance.

[1] Bevan (1995) FLC 92-600
[2] Section 75(2) of the Act provides that “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”
[3] In the Marriage of Nutting [1978] FLC 90-140
[4] In the Marriage of Evans [1978] FLC 90-435
[5] In the Marriage of Mitchell (1995) 19 Fam Lr 44
[6] Section 75(2)(f) of the Act.

How We Can Help

Quinn & Scattini Lawyers’ expert Family Law Team can assess your individual situation in accordance with the Act, provide expert guidance in negotiations with your former partner surrounding spousal maintenance, offer practical and experienced advice if appearing before the Court is unavoidable, and provide you with the best possible representation if court-ordered agreements are required.  With over 40 years’ experience, Q&S’s Family Law Team are experts in the family law field.  The team also boasts an Accredited Family Law Specialist.

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